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tv   Democrats Continue Filibuster Threats as U.S. Senate Formally Begins...  CSPAN  April 5, 2017 4:00am-8:01am EDT

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but a small group of conservative intellectuals have gone much further to argue that the rules that safeguard our welfare and the orderly functioning of the market have been fashioned in a way that's not constitutionally legitimate. this once fringe cause of the right asserts, as judge gorsuch put it in a speech last year, that the administrative state poses a grave threat to our values of personal liberty, unquote. the 80 years of law that are at stake began with the new deal. president franklin d. roosevelt believed that the great depression was caused in part by competition among companies. in 1933, congress passed the national industrial recovery act which allowed the president to approve fair competition standards for different trades
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and industries. the next year, roosevelt approved a code for the poultry industry which among other things set a minimum wage for maximum hours for workers and hygiene requirements for slaughter houses. such basic workplace protections against restraints in the free market are now taken for granted. but in 1935, after a new york city slaughter house operator was convicted of violating the poultry code, the supreme court called into question the whole approach of the new deal by holding that the nira was an unconstitutional delegation by congress of a legislative power. only congress can create rules of the poultry code, the justices said, because congress did not defund fair competition, leaving the rule making to the
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president, the nira violated the constitution's separation of powers. the court's ruling in the shecter poultry corporation against the united states along with another case decided the same year are the only instances in which the supreme court has ever struck down a statute based on this rationale, known as the nondelegation doctrine. shecter poultry's stand against executive branch rule making proved to be a legal dead end for good reason. as the court has recognized over and over before and since 1935, congress is a cumbersome body that moves slowly in the best of times, while the economy is an incredibly dynamic system, for the sake of business as well as labor, the updated regulations can't wait for congress to give highly specific and detailed
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directions. the new deal filled the gap by giving policy-making authority to agencies, including the securities and exchange commission which protects investors and the national labor relations board which oversees collective bargaining between unions and employers. later came other agencies, including the environmental protection agency, the occupational safety and health administration, which regulates workplace safety, the department of homeland security. still other agencies regulate the broadcast spectrum, keep the parks open, help farmers and assist americans who are overseas. administrative agencies coordinated the response to september 11, kept the ebola outbreak in check and were instrumental in implementing the last financial crisis. they regulate the safety of
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food, drugs, airplanes and nuclear power plants. the administrative state isn't optional in a complex society. it's indispensable. i'm reading from the article, the government gorsuch wants to undo. it continues -- but if the regulatory power of this arm of government is necessary, it also poses a risk that federal agencies with their large bureaucracies and potential ties to lobbyists could abuse their power. congress sought to address that concern in 1946 by passing the administrative procedure act whichen shiewrs a role for judiciary in overseeing rule-making agencies. the system worked well enough for decades but questions arose when ronald reagan came to
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power, promising to deregular late. his e.p.a. sought to weaken a rule issued by the carter administration which called for regulating stationary sources of air pollution, a broad wording that is open to interpretation. when president reagan's e.p.a. narrowed the definition of what counted as a stationary source to allow plants to emit more pollutants, the environmental group challenged the agency. the supreme court held in 1984 in chevron versus the natural resources defense council that the e.p.a. and any agency could determine the meaning of an ambiguous term in the law, the rule came to be known as the chevron deference. when congress uses ambiguous language in a statute, courts must defer to an agency's reasonable interpretation of what the words mean. chevron was not viewed as a
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left-leaning decision. the supreme court decided in favor of the reagan administration after all, voting 6-0, three justices did not take part and spanning the ideological speck interim. after the conservative icon, justice antonin scalia reached the supreme court, he declared himself a chevron fan. quote -- in the long run, chevron will ensure, justice scalia wrote in the 1989 article, because it more accurately reflects the reality of government and thus more adequately serves its needs, but that was then. the reagan administration's effort to cut back on regulation ran out of steam. it turned out the public often likes regulation because it keeps the air and water clean, the workplace safe and the financial system in working
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order. deregulation of the financial system led to the savings-and-loan crisis of the 1980's, the financial crisis a decade ago costing taxpayers billions. businesses, however, have continued to complain that the federal government regulates too much. in the past 20 years, conservative legal scholars have bolstered the red tape critique with a constitutional one. they argued that only congress, not agencies, can create rules. this is shecter poultry all over again. and judge gorsuch has fortunately joined in. last year in a concurrent case called gutierrez brezela versus
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lynch, he attacked chevron deference writing that the rule, quote, certainly seems to have added prodigious new powers to an already titanic administrative state, end of quote. remarkably, judge gorsuch argued that chevron, one of the most frequently cited cases in the legal canon, is illegitimate in part because it is out of step with, you guessed it, shecter poultry. never mind the supreme court hasn't since relied on its 1935 amendment to scuttle the new deal. nevertheless, judge gorsuch wrote that in light of schechter poultry, we might ask how it is that chevron, the rule that invests agencies with pretty unfettered power to regulate a lot more than chicken, can evade
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the chopping block. at his confirmation hearings, judge gorsuch hinted that he might vote to overturn chevron without saying so directly, noting that the administrative state existed long before chevron was decided in 1984. the implication is that little would change, of course referring to the e.p.a.'s or the department of labor's statute. judges would interpret the law. who would object to that? but here's the thing, the article continues. judge gorsuch is skeptical that congress can use broadly written laws to delegate authority to agencies in the first place. that can mean only that at least portions of such statutes, the source of so many regulations that safeguard americans' welfare, must be sent back to congress to redo or not. on the current supreme court, only justice clarence thomas seeks to strip power from the administrative state by undercutting chevron and even reviving the object sleet discredited nondelegation
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doctrine as he explains in opinions provingly cited by judge gorsuch. but president trump may well appoint additional justices, the other conservatives on the court have expressed some uneasiness with chevron, although as yet they are not unbarred from overturning them. what would happen if agencies could not make rules for the financial industry and for consumer environmental and workplace protection? decades of experience in the united states and around the world teach that the administrative state is a necessary part of the modern market economy. with judge gorsuch on the supreme court, we will be one step closer to testing that premise. that's the conclusion of the "new york times" article, the government gorsuch wants to undo by emily bazelon and eric posner, written april 1.
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the next article i will share with you are editorials one from november 7 and i believe the other from december 24, 2016. and this is by the editorial board of the "new york times."
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it reads as follows. people don't usually remember it this way, but on december 13, 2000, vice president al gore gave world cup of the most important speeches in american history. mr. gore had contested initial results of the florida vote count and prevailed in the florida state courts, but the supreme court had voted 5-4 the day before to end the recount and effectively hand the presidency to george w. bush. now the u.s. supreme court has spoken, mr. gore said. let there be no doubt. while i strongly disagree with the court's decision, i accept it. the frenzied battle over a few hundred votes had spawned intense anger across the country, but it had been resolved, quote, as it must be resolved through the honored institutions of our democracy.
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mr. gore's concession that night still stands as the most powerful reaffirmation in modern times of the supreme court's unique and fragile role in the american system of government. millions of people were furious at the justice's decision in bush v. gore. many believed it the result not of legal reasoning but of rank partisanship, and yet virtually everyone followed mr. gore's selfless lead, accepting the court as the final arbiter of the dispute and moved on. there were no riots in the streets, no attempted coups, no second amendment solutions. there was instead a peaceful transfer of power, the hallmark of a civil society operating under the rule of law.
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16 years later, the supreme court sits crippled, unable to resolve the most pressing legal questions before the country. two events. the sudden death of justice antonin scalia in february and the unprecedented refusal of senate republicans to even consider obama's -- president obama's pick to fill the vacant seat have converged to throw the court's future as a functioning institution into doubt. this scenario would have seemed unimaginable a year ago, but tuesday's vote for president and for control of the senate will determine whether the court remains short happenedded for months, or as republicans are now threatening if they hold the senate for years. last month, senator richard burr of north carolina told
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supporters that if hillary wins, i am going to do everything i can to make sure four years from now we will still -- we have still got an opening on the supreme court. senator ted cruz of texas suggested he was happy with the situation and said, there is certainly long historical current for a supreme court with fewer justices. even senator john mccain, who once joined with democrats in an effort to depoliticize the judicial nomination process, recently told a radio shocker i promise you that we will be united against any supreme court nominee that hillary clinton, if she were president, would put up. step back for a moment and consider the radical absurdity of this position. senate republicans first justified their refusal to hold hearings or a vote on mr. obama's nominee before the presidential election because the people's voice needed to be heard. that was always a transparent
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lie. now apparently believing their candidate donald trump will lose, they're acting as though the supreme court is the property of the republican property. this mind-set isn't just a matter of a few senators going rogue. leading conservative groups are embracing the argument, happy to destroy a principle of american politics, to privilege partisanship over the constitution itself. repeat that again, to privilege partisanship over the constitution. mr. shapiro from the cato institute wrote two weeksing a that, quote, it would be completely decent, honorable and in keeping with the senate's constitutional duty to vote against essentially every judicial nominee a president clinton would mean last thursd thursday, the vice president of heritage action for america, a top conservative think tank,
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said senators mccain, burkes and cruz were taking exactly the right position, that an effective long-term blockade of the court would require an immense amount of willfour from senate -- willpower from senate republicans. when was the last time public interest won out in today's republican party? the indefinite blockade not only hobbles the justices ability, it takes legitimacy of the court as the sole unelected branch of government. because the court has no influence over either the sword or the purse, end of quote, as alexander hamilton wrote in "the federalist" papers. it is legitimacy and authority depend entirely on the shared public acceptance of its verdicts. i think that's worth repeating.
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as alexander hamilton wrote in "the federalist" papers, it's legitimacy and authority depend entirely on the shared public acceptance of its verdicts. today's republicans are essentially saying the court is nothing but another political body, that justices should be treated as ideological sock puppets of the president who nominated them. yes, the justices come with political beliefs and backgrounds, but that makes it all the more important to demand that they work harder than the rest of us that they preserve their independence. that is why, for instance, justice ginsburg was wrong to comment on mr. trump's candidate circumstance words for which she later apologizes. until this year, no one disputed that the president should have wide latitude in picking justices. in 1993 senate republicans voted overwhelmingly in favor of
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justice ginsburg, president bill clinton's first nominee. and even though they voted in large numbers against mr. obama's first two nominees, sonia sotomayor and elena kagan, they did not try to block those nominations from going forward. senate democrats voted to confirm ronald reagan's choice of antonin scalia and allowed full votes on robert bork and clarence thomas, both of whom they strongly opposed. in 2016, republicans have blown this delicate balance to pieces, all to keep a conservative majority. of course the court has had a majority of republican-appointed justices for nearly half a century through the normal process of advice and consent. but now republicans want to maintain that majority even if it means tossing out all political norms. this would promote a world views where fewer people have rights, where women do not have reproductive choices, where
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lawmakers can make it harder for minorities to vote, such a court could ensure that american politics can be flooded with unlimited money, that reasonable gun restrictions are struck down, that corporate interests prevail over those of scourges and that basic environmental regulations are turned back. make no mistake, that is the court americans would get under a president trump. still, senate democrats would have an obligation to consider and vote on the nominee. just as republicans would have that obligation to mrs. clinton's choices. no doubt there would be democratic voices demanding senators minimum mick the republicans' example. the constitution asks more of us in that. the very survival of the court as an independent body will be at stake.
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well, i certainly agree that the very survival of the court as an independent body will be at stake -- is at stake right now. that's why i'm here on the floor at 4:20 in the morning. because so much is at stake in terms of the legitimacy of the court, and this is probably a good moment to return to the central premise of where we are, and where we are is that for the first time in u.s. history, a seat has been stolen from one president and delivered to another in a court-packing scheme, and if that were to succeed, it would set a
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precedent that will haunt the court for decades to come. and it will haunt this body, the senate, because if a theft succeeds, then it changes the analysis of every future supreme court vacancy. if there is a vacancy and it is an opportunity for the democrats to steal a seat back and deliver it to a future president who might be a democrat, will they do so? and would they be right in doing so, to rebalance the court after a seat has been stolen? we should never have to ask these questions, questions such as, if you can steal a seat and get away with it when a estate becomes stray -- when a seat becomes vacant a year before a president leaves office, can do
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you it for three years? can you keep a seat vacant for four years, as suggested by the article i just read and the comments of some of my colleagues, who noted they would be determined to reject any nominee put forward by hillary clinton. these questions are being asked because of this crime against our constitution, the crime of stealing a supreme court seat in an effort to pack the court. the second big issue we're facing are the investigations under way of the trump campaign and its possible coordination with the russians to change the outcome of the election. now, we know a lot about what the russians did. we know they created false news stories. we know that they had a team estimated to be 1,000
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individuals in a building doing social media to amplify the impression that americans were writing comments, negative comments about hillary clinton. we know that they had a system of bots, a botnet, if you will, to use computers to respond and add commentary on comments people were making in social media, so it looks like there's far more people, far more disgruntled individuals who are criticizing, who were criticizing the democratic nominee. we know that their strategy involved trying to influence the outcome in terms of groups like facebook, identifying something as trending and then putting it
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up as trending news, so that the false news now being driven by the 1,000 social media folks in some building and the botnet is amplified to the degree that it's now console scrolling scrn your facebook looking at legitimate us in. we know that the russians released it in a fashion designed to damage the presidential nominee from the democratic party. so that's a pretty comprehensive strategy of fake news and fake social media comments and botnet-generated comments on breaking into computers to secure information and release it in a fashion to damage the democratic nominee hillary clinton. now, we'll learn more about all these things, but that's a
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pretty good list of serious attacks on the united states of america, attacks on the integrity of our electoral system. what we don't know and why there are investigations under way is how much the trump campaign communicated with and conspired with that russian operation. each day, drip by drinks we hear more -- drip by drip, we hear more about some contact. this morning it was the meeting in the seychelles that we didn't know about previously. every day it seems like there is eone little additional piece. and we don't know where it will all lead to, if anywhere. maybe it leads nowhere. but we must pursue it because if
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anyone conspired with the russians to undermine the integrity of our elections, change the outcome of the elections, that is traitorous conduct, and it must be prosecuted to the full extent of the law. but right now we don't know a lot about how much communication and how much potential collaboration or conspiracy there was, so we have investigations to get to the bottom of it in the f.b.i., an investigation in the house intelligence committee, in the senate intelligence committee. and we shouldn't be considering this nomination while those investigations are under way. and, of course, a third significant reason that we shouldn't be pursuing this is
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because the president failed to recognize the role of supermajority requirement, the 60-vote requirement, that anyone who serves on the supreme court should be able to get bipartisan support from 60 members. and, therefore, nominated somebody from the far right, the extreme right. all the opinions we've talked about over the last many hours are related to crushing the rights of individuals and helping the most powerful. and certainly an individual at that far point in the spectrum is not from -- not from the mainstream of judicial thinking.
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and so it's another reason this should be set aside. and then we had that information that came out about 11:00 earlier this evening, 11:00 p.m. tuesday time. now we're five and a half hours later. but the information was about the number of cases in which neil gorsuch had lifted passages, virtually word for word, from others without giving them credit, and that is known as plagiarism. and hopefully that issue will get a fair amount more attention and be examined closely. the next article i'm going to read was entitled -- or is tilde titled, and it was in the sunday review, december 24 had the stolen supreme court seat. soon after his inauguration next
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month, president-elect donald trump will nominate someone to the supreme court which has been hamstrung by vacancy since the death of justice antonin scalia in february. there will be public debates about the nominee's credentials, past record, judicial philosophy. there will be senate hearings hand a vote. no matter how it plays out, americans must remember one thing above all: the person whoeth goes confirmed will sit in a stolen seat. it was stolen from barack obama, a twice-elected president who fulfilled his constitutional duty more than nine months ago by nominating merrick garland, a highly qualified and widely respected federal appellate judge. it was stolen by top senate republicans who broke with long-standing tradition and refused to consider any nominee mr. obama might send them because they wanted to preserve
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the court's conservative majority. the main perpetrators of the theft were mitch mcconnell, the majority leader, and charles grassley, chairman of the judiciary committee, but virtually all republican senators were accomplices. only two supported holding hearings. the republican party line that it was an election year so the american people should have a voice in the selection of the next justice was a patent lie. the people spoke when they re-elected mr. obama in 2012 and trusting him to choose new members for the court. the senate has had no problem considering and usually confirming election year nominees in the past. of course, supreme court appointments have always been political, and the court's ideological center has shifted back and forth over time. but the senate has given nominees full consideration of a
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vote even when the party in power has opposed the president's choice. that is, until this year. republicans claim that although the constitution calls for the senate's advice and consent, senators are not obligated to do anything. this is a bad-faith reading of that clause. even if there is no clear way to force a vote, it certainly obliterates a well-established political norm that makes functioning judicial branch possible. as paul crulgman wrote in -- krugman wrote in his column on monday, institutions are not magically self-sustaining and they don't protect against tyranny when powerful people start to define political norms. this particular norm is of
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paramount importance because the court's institutional legitimacy depends on its perceived separation from the elected branches. a fragile concept in the best of times. by tying the latest appointment directly to the outcome of the election, mr. mcconnell and allies took a torch to that idea, an outrageous gambit that to nearly everyone's shock has paid off. while republicans may be celebrating now the damage they have inflicted on the confirmation process and on the court as an institution, may be irreversible, the slope is both slippery and steep. if republicans could justify an election year blockade, what's to stop democrats in the future
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from doing the same? for that matter, why should the party controlling the senate ever allow the president of the opposing party to choose a justice? indeed, in the weeks before the election, senate republicans were threatening, with the encouragement of leading conservative thinkers, never to confirm anyone to fill the vacancy if hillary clinton won. can anything be done to repair the harm? one step, as obvious as it is unlikely, would be for mr. trump to renominate mr. garland. conservatives will scoff that they know he is as qualified for the job as anyone in the country. when mr. garland was floated as a possible choice for the supreme court in 2010, orrin hatch, the senior republican senator from utah, called him a consensus nominee, and so there
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was no question that he would be confirmed with bipartisan support. that's partly why mr. obama nominated him this time and also why mr. mcconnell denied him a hearing. he knew he couldn't prevent a senate vote once americans saw an eminently qualified and reasonable jurist testify on live tv. at the very least, mr. trump could follow president obama's example and pick a centrist, someone who commands wide respect and operates within the bounds of mainstream legal thought. that would be an appropriate gesture from a man who lost the popular vote by more than 2.8 million votes and will enter office with the lowest approval ratings in recent history. the shameful, infuriating actions of the senate republicans won't be ignored in the history books. in a desperate effort to keep a conservative majority in the court, they rejected their own
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professed values of preserving american institutions. there is little hope that they will come to their senses now, but they and mr. trump have the power and the obligation to fix the mess they have created. that's the article of the stolen supreme court seed, editorial, sunday review of the "new york times." i do hope that there is a path, a path in which this can be avoided because it is enormously significant to confirm a justice when the seat has been stolen. it's enormously damaging to
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confirm a justice when the president's team is under investigation for possible collusion with the russians. it is enormously big deal to confirm someone way out of the mainstream of judicial thought in america. so should this progress, should we find that there are 41 individuals who will stand up for our institutions and block this nomination under the filibuster tradition, the 60-vote tradition, 60 votes are required to proceed, we will have the question of whether we're going to change the rule or change the nominee. and always in the past, when the senate rejected in any fashion,
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including closing debate on a motion to proceed, rejected a nominee by tabling them, evicted a nominee by voting him down, the answer was change the nominee, protect the integrity of the court. i think the advice in the december 24 editorial, the stolen supreme court seat, which calls on the president to appoint a centrist, nominate a centrist is terrific advice because it may give a chance for healing to take place. there will be no healing if the seat is filled by neil gorsuch,
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a seat that belonged to president obama under the constitution of the united states of america. a seat that was stolen for the first time in u.s. history. that dynamic will haunt us for a very, very long time. this editorial is from january january 31 from "time" magazine titled "sorry, neil gorsuch, the supreme court vacancy was already filled," written by jeffrey stone. if antonin scalia died today and donald trump thereafter nominated judge neil gorsuch as his successor, i might support judge gorsuch's confirmation. although judge gorsuch has not yet established himself as a jurist of any distinction, he is generally regarded as a capable judge with good character.
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moreover, although he is a very conservative jurist, he would be replacing a justice with a similar ideological disposition. in such circumstances, just as i supported the confirmation of judge john roberts to succeed chief justice rehnquist, so too i would be inclined to support the confirmation of neil gorsuch to succeed antonin scalia. even though i strongly disagree with gorsuch's very conservative ideology. but antonin scalia did not die today. he died almost a year ago, and president barack obama nominated judge merrick garland to succeed. judge garland is a jurist of impeccable credentials and personal character who was widely celebrated for his moderate approach to the law. president obama nominated garland not only because of his distinguished reputation as a jurist but because as a relatively moderate judge he should have been more than acceptable even to the most conservative senate republicans.
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in typical obama fashion, garland's nomination was an effort to compromise in order to win the support of senate republicans. chief judge garland should have been confirmed easily. indeed, every supreme court nominee in living memory with anything approaching chief judge garland's impeccable credentials and record of moderation has been easily confirmed by the senate without regard to whether the senate was controlled by the president's party or by the opposing party. this was true, for example, of such republican nominees to the court as warren burger, harry blackmon, lewis powell, william rehnquist, john paul stevens, sandra day o'connor, anthony kennedy and david souter. even the extremely conservative
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antonin scalia was confirmed by a vote of 98-0. but not merrick garland. in a completely unprecedented abuse of power, senate republicans under the relationship of senate majority leader mitch mcconnell refused to confirm or even to consider judge garland's nomination. this unconscionable maneuver was nothing less than a dishonorable and dishonest effort to steal the seat on a supreme court for the right wing. senator mcconnell had the audacity to maintain that the people should decide who should fill this particular vacancy. by employing his dupe police us it strategy, he managed to shift this appointment from a president who had won the popular vote by five million
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votes in 2012 to one who lost the popular vote by three million votes in 2016. this crass, unprincipled manipulation of our democracy should not be allowed to succeed. anyone who cares about the proper legitimate functioning of our american democracy must oppose judge gorsuch's nomination, not because he is necessarily unqualified but because of the undermining of our american democracy by senate republicans. anyone who cares about the rule of law must oppose this nomination. if we fail to take this stand, the senate republicans will have succeeded in placing a justice onto our highest court who has no business being there. they will undermine the credibility of the supreme court as an institution, an institution that is critical to the functioning of our constitution. judge gorsuch's nomination should be withdrawn, and the president should nominate in his place a genuinely moderate
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justice, acceptable to democrats and republicans alike. only then can we move on with a sense of institutional integrity. short of that, every decision of the court decided by a margin of 5-4 with neil gorsuch in the majority will justifiably be castigateed as fundamentally illegitimate. that was in "time" magazine by jeffrey stone, op-ed, opinion editorial titled "sorry, neil gorsuch, the supreme court vacancy was already filled." this com
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commentary is from "rolling stone" entitled "grand theft judiciary: how republicans stole the supreme court" and subtitled "pray that ruth bader ginsburg and her fellow justices stay healthy and don't retire," written in november of 2016. republicans just pulled off one greatest heists in american political history; they stole a supreme court justice. since 1789 there have been 112 justices on the supreme court. having the opportunity to appoint a new justice is one of the prize opportunities for a president. a president can influence american law and export decades to come. for instance, anthony ken day was appointed by president reagan. since he sits in the ideological middle of this current court,
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kennedy's views on the law often determine how american justice worked. for that, we owe thanks to a president who was elected 32 years ago and has been dead since 2004. that is the power of a supreme court appointment. these opportunities are often completely unpredictable. justices are appointed for life, so they leave their position only when they retire or die. sure, a president can make an educated guess about particular justice's life speck tan sis or end of career plans. but knowing exactly when a justice going to lever the court sought of the president's control. when justice scalia died suddenly in february, president
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obama was gifted the opportunity to fill his third seat on the court. he had previously replaced david souter with sonia sotomayor and john paul stevens with elena kagan. near the of those shifted the court's ideological balance, as in each case obama replaced a judicial liberal with another liberal. replacing scalia on the other hand was going to be a monumental shift in the court. scalia was one of the most conservative justices in the history of the court. an obama replacement would give the court its fifth liberal and theft i. shift to the left. president obama and the democrats were salivating at the opportunity. republicans, though, were having none of it. through unflinching and unified obstructionism combined with
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tuesday's election of donald trump, they succeeded in stealing the seat right out from president obama's nose. it was a staggering case of grand theft judiciary. this all started almost immediately after scalia's death, with the republicans claiming a new theory that a president should not be able appoint a justice during an election year. rather, the people should be allowed to speak an decide the direction of the court. never mind that justices have been confirmed regularly throughout history in election years and that presidents have constitutional authority to appoint judges to federal judiciary in all four years of their term. not just their first three. and that the court would have to and continues to function with only eight justices. the republicans understood the stakes of shifting the court's ideology. so they public property a united obstructionist front and never waive herred in saying they would not confirm an a obama
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appointee this year. president obama, as he often does, thought he could break through the republican wall by trying to appease them. instead of nominating a young liberal firebrand or a judicial first, he nominated a well-respected but moderate, not young white male, merrick garland. obama thought garland, who had been praised throughout his career by politicians on both sides of the aisle, would be unobjectionable and would break the logjam. the president couldn't have been more wrong. without any interest group to cheer lead his cause, garland was quickly forgotten and faded into the distant background of american politics. as a result, there was no movement whatsoever and garland's nomination has lingered with no action longer for any nominee -- than for any nominee in history. during the campaign, democrats occasionally brought up this issue, trying to paint
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republican senators as obstructionists and against good government, but the issue never stuck in senate races. and hillary clinton never really led the charge of the supreme court either. as a result, according to an abc exit poll, of the 21% of americans who said the supreme court was the most important factor in their vote, 57% of them voted for trump and only 40% for clinton. now that trump is president-elect, he is going to have the opportunity to full justice scalia's seat even though the supreme court will remain shorthanded for months longer. there is no chance republicans will do anything to move garland's nomination between now and the nomination. they want their stolen prize, and they'll wait for it. trump has a list of 21 possible justices he would nominate, all of whom have varying pedigrees
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as conservatives. if he follows through and nominates someone from thatly, the democrats could respond with a similar blockade. though republicans still control the senate and must be able to move the judiciary through the committee to the floor, the democrats could try to filibuster. a filibuster requires 60 votes to break, so the 52 republicans in the senate would not be able to stop it. there are two problems with this plan, though. democrats have been less unified in the past when it comes to opposition than the republicans have been. the democrats would need to make sure no more than seven senators broke ranks. with several democrats up for reelection in very conservative states, that may be more difficult than it should be. second, the republicans may opt to get rid of the filibuster. this option commonly referred to as the nuclear option, would eliminate the filibuster as a tool for supreme court nominees. balls the republican opposition during the obama years, the democrats eliminated the
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filibuster for lower-court judges when they controlled the senate. however, they kept it for supreme court nominations because they understood just how controversial and serious such a move would be. the author continues, i have no expectation republicans would do the same. they have listen laser focused on wrestling this nomination away from president obama and are not going to let the democrats ruin their fun. senate rules allow the filibuster to be healthed with a -- to be eliminated with a majority vote. the republicans will probably do so very soon after trump nominates his justice and democrats filibuster. what will this mean? -- what will this mean for the supreme court? filling the seat will put a younger conserve any of in justice scalia's seat, will dash hopes of a new progressive court and continue its history of one of the most conservative courts in american history. however, the court would still
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have justice kennedy as the swing justice. well, obviously this was written before the nomination of neil gorsuch. it notes that if republicans go nuclear, there's almost nothing democrats can do to stop it. and that's certainly true. we don't have a mechanism that can prevent this body from reinterpreting the application of its rules. it happens in a very simple fashion. a member asks for a ruling of the chair on whether the supermajority provision to close debate applies to closing debate
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on senate nominees, and the chair consults with the parliamentarian and probably says yes, it does clearly apply, and then the majority leader challenges the ruling of the chair, and if 51 folks vote to overturning point the ruling of the chair, that's it, the precedent is then set, the supermajority does not apply to supreme court nominees to closing debate on supreme court nominees. it's that simple. it is not a range change in the rules -- it is not change in the rules. the senate rules require a supermajority to change the rules, which has not always been helpful. it has meant that the senate has not adjusted to the changing culture of the senate to keep it functional. a lot of times state legislatures are far more functional than the u.s. senate.
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because when they have problems develop as the culture changes and people develop -- or people develop new tactics for obstruction, they adjust the way that they operate in order to make sure that they can keep making decisions. it's not unusual in my home state, oregon, for us -- that the body in the house or the senate in oregon -- to consider eight or ten bills in a day, with a bill raised and everybody who wants to speak to it for five minutes or less gets to speak to it and then there is a vote, it is decided. there is more conversation, sharing of viewpoints on the floor of the oregon house in the course of a single day than there is a share of views and debate on the floor of the senate in an entire year.
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we've basically completely lost anything resembling a conversation about any issue before the nation here on the floor of the senate. and that is tragic situation but could be changed, if we changed the way that we operate. "the l.a. times" editorial board wrote an essay entitled "i.t. not neil gorsuch's fault. we can't support his ascension to a stolen supreme court seat." as you can see from the series of articles, no one will ever forget that for the first time in u.s. history, the majority is stealing a seat from one
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president and delivering it to another, an audacious effort to pack the court. and no one should ever forget that. and we should come to our senses and end this before the theft is completed by confirming the nominee to the seat. well, this article in "the l.a. times," by the editorial board, says a decade ago the "times" urge the the senate to confirm john roberts to the supreme court even though he was a conservative judge nominated by a conservative president and was likely to pull the court to the right for decades. we backed him, despite our disagreementdisagreements with l philosophy because we believe that presidents, democrats and republicans alike, are entitled
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to significant deference when they nominate justices to the high court, as long as the nominees are well-qualified and scandal-free, respect precedent, and fall within the broad mainstream of judicial thinking. under normal circumstances, that same reasoning would lead us to support the nomination of judge gorsuchs. like roberts, he is conservative but confident, with more than a decade of experience on the appellate bench and a well-qualified rating from the american bar association. but these are not normal times, not after the outrageous obstruction of judge merrick garland's nomination for ten full months by senate republicans. that debacle began in march 2016 when president obama nominated garland, a moderate and well-respected appeals court judge to fill the seat on the court. it had become vacant with the
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death of justice antonin scalia. instead of doing what the constitution requires and offering their advice and, it merited, their consent, senate republicans refused even to engage in the process. they denied garland a confirmation hearing and in many cases wouldn't even meet with him. on the hastily fabricated pre-that exa president -- it was never realry clear what the supposed principle was behind the self-serving position. they stonewalled the nomination until obama was safely out of office and a republican had won the election. and now with gorsuch subbed in for garland, their strategy is about to deliver its rewards.
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some people think it's hyperbolic to suggest the seat was stolen, but how else to describe it. republicans took the opportunity to fill the vacancy away from barack obama without justification and delivered it up instead to donald trump. gorsuch could now tilt the balance on the increasingly polarized supreme court for the next 30 or more years. influencing rulings on free speech, gay and transgender rights, campaign finance, abortion and gun laws, among other subjects. he may not be outside the mainstream of judicial thinking, but he is a -- an originalist,
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an unlikely ally of the court's conservative justices. the republicans' underhanded ploy to subvert the garland nomination has put democrats in an untenable position. they could now do what would orderly be the right thing to do by going high after republicans went low. they could grumble a little bit but then decline to filibuster. or they could even vote in favor of gorsuch, effectively capitulateing the quixotic hope that an act of good faith would encourage republicans to behave more honorably in the future. alternately, they can go down kicking and screaming, and we say go down because no matter how hard they kick or how loud they scream, they seem unlikely to win this battle. the reality is that without filibustering, they don't have the votes to defeat gorsuch.
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if they do mount a filibuster, senate republicans can vote to do away with the filibuster. under either scenario, gorsuch gets his job. to be clear, democrats and republicans share the blame for the long road down the slippery slope to dysfunction in the selection process. some democrats have suggested in the past that presidents shouldn't fill supreme courts in election years. as that selection process has become increasingly politicized, the court itself has become more ideologically riven as well, although there are differences between roberts and justice samuel alito, for example, on some important first amendment issues, it's also true in recent years, justices appointed by democratic presidents have tended to vote liberal outcomes and justices appointed by conservatives for conservative outcomes. that polarization is a bad trend. the judicial system works best
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when justices are neither rigidly ideological nor biased along partisan lines. to get there, we need a less highly politicized selection process, along with a measure of cooperation, compromise and civility in congress. for the moment, though, it is imperative to remind the world of what the g.o.p. did. by all means, let's hear a cry from the heart from democrats even if it is in vain. republicans' misuse of power took partisan obstructionism to an extraordinary new level and must not ignore now as if it had never happened. president obama's nominee was robbed of his right to a hearing. the senate democrats have no obligation to be complicit in the theft. i do believe it's our
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responsibility to cry out from our hearts that this is wrong. stealing a senate seat -- excuse me, a supreme court seat is wrong. having this deliberation while the president is under a cloud for his team's potential collaboration with russians is wrong. and while this article described gorsuch as a bit more mainstream, as people have become familiar with his opinions, opinions that were widely criticized by other republican jurists and in one case overturned by the supreme
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court on an 8-0 vote, they have come to the recognition he is way far out on the fringe, not in the judicial mainstream. so how do we fix this? we fix it by each senator asking what they would do if the tables were turned and the democrats had stolen a seat. the republicans would cry out it was wrong and they would ask the democrats to join them in rejecting that theft. so i invite my colleagues to go through that exercise. how would you respond if a seat had been stolen from a republican president and delivered to a democratic president? how would you respond if that democratic president was being investigated for potential collaboration with the russians
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to sway the outcome of our elections? how would you respond if the nominee was not from the mainstream but from the far edge? i'm quite confident about each person would -- about how each person would respond because that situation would be outrageous. and so we must be able to step into each other's shoes and say if we're going to preserve this institution, we have to be willing to recognize when it's gone off course as it has gone dramatically off course this last year.
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this article is by don johnson, and is titled "trump's nominee shouldn't get a hearing until merrick garland is seated." it really is -- as several of these articles have mentioned, there is a path to righting this wrong, and that is to go back in time, recognize that merrick garland was not considered by the senate, and that we need to tell the president we're not interchange any person other than merrick garland to be in this seat, that we will debate whether he should be in this seat, we will vote on whether he should be in the seat and thereby rectify this theft, this
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stolen seat theft that will otherwise haunt this body and haunt the supreme court for the rest of our lives, and maybe well through our children's lives. but we haven't committed the crime yet. the step has not been completed, and so we should all be pondering how we prevent that from happening. the article starts out, as president trump's nominee for the vacant supreme court seat receives public scrutiny in the coming days, it's incumbent for us to remember one thing. this seat was not trump's to fill. in fact, the united states senate should refuse to confirm anyone president trump nominates to the supreme court until trump renominates the senate confirms judge merrick garland.
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then refers to a senate filibuster as the only correct approach. to recap -- the senate failed to fulfill its constitutional responsibility with its unprecedented refusal even to consider president obama's nomination of garland. obama made the nomination with about a year left in his presidency, but from day one, the republican senate leadership insisted that it would permanently block it. no one ever questioned garland's qualifications, an impossibility for this brilliant, dedicated public servant. the obstruction constituted an insulting challenge to obama's legitimacy, accompanied by calls for the people to decide via the election of the next president. the republicans effectively have attempted to steal this supreme
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court seat, and if this effort succeeds, as has appeared likely, ever since trump's surprise election, it will create a fundamental imbalance in the third branch of our federal government, the independence and integrity of which is vital to our constitutional system. an essential role of the federal judiciary is to check unlawful actions of the political branches. congress and the president. when political actors conspire to distort the makeup of the court as they did in denying president obama his basic constitutional role, we the people must demand that the balance be restored. the confirmation of garland to the court would provide perfect justice. this may not be quite so far-fetched as it might seem
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initially. president trump is likely to have the opportunity to make more than one supreme court appointment, as jump is not nominating garland this time, the senate should keep the current vacancy open until a second seat becomes vacant to then confirm garland followed by the consideration of the trump choice. the only appropriate alternative given the constitutional stakes would be to remain an eight-person or fewer court for the next eight years. again, i'm reading this article, so the i is the author, and the author is don johnson. i don't suggest this lightly. i experienced firpd the personal toll of the senate refusing to vote on my nomination to head the department of justice's office of legal counsel in 2009 and 2010.
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one republican senator sought to reassure me that it wasn't personal. it was politics. it was how the game was played. you do it to us, we do it to you. my husband, two sons and i spent more than a year in confirmation limb bow, in a rented home, in a rented house far from home, awaiting the senate vote repeatedly predicted for next week or next month but that never came. of course, the politicization of a presidential appointment is wrong. each of the president's nominations orderly should be assessed on its individual merits. notwithstanding trump's awful first ten days in office, the senate should continue to offer the president's executive branch nominees the same fair standard of treatment. in particular, trump's nominee to head the office of legal counsel, the office to which president obama nominated me and
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the same office i headed for part of the clinton administration should be confirmed expeditiously as long as the nominee is personally qualified. the president is in desperate need of good legal advice. but this supreme court vacancy is different. it exists only as a as a result of the wrongful denial of the legitimacy of obama's presidency. it is a break down of the very functioning of our democracy and a slap in the face to constitutional norms. it is an attempted theft that if permitted would bring long-standing consequences. its end was to prevent the court from having a majority of justices appointed by democratic presidents for the first time since 1969. that's almost half a century, with a court majority appointed by republican presidents.
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a striking imbalance that does not reflect the presidential vote. since 1961, democrat and republican presidents have served equal numbers of years. the flimsy and transparently specious argument republicans offered was let the people decide. of course, people decided when they elected president obama to a second four-year term, and three million more americans decided they prefer obama have a democratic successor than trump. those who value an independent judiciary and a senate committed to democracy can fix this constitutional problem by insisting on merrick garland's appointment to the seat he already should be occupying. the pick after that can belong to president trump. i think that accurately sums it up. there is an idea embedded in there of saying how about this.
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how about this, fellow senators. that we suspend the consideration of neil gorsuch at this point in time until there is another senate seat that opens up, and then at that time merrick garland gets at least considered for the first seat, the seat that he was rightly nominated for, and president trump has his person rightly considered for the second seat. that would be a way to heal the mess that has been created through the theft of the supreme court seat. we've stalled it but we won't act on it and so eventually we'll enable the same nominee to be considered for that seat. interesting idea. face-saving idea, an idea that gives president trump the
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opportunity to make the nomination that corresponds to a seat that comes open during his administration and president obama's nominee to be considered for the seat that came open under president obama's control of the presidency and time in office. the louisiana times january -- the l.a. times january 31 editorial said -- and the title
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was, kind of sums it up, when the g.o.p. stole merrick garland's supreme court seat, they set the stage for a miserable battle. that's pretty much the situation we're in. the previous article i read laid out an idea of a way around it at this point, in which we leave scalia's seat empty until there's a second seat. and then merrick garland gets considered for the first seat and the president's -- if the president wants his nominee to be considered for the second seat he'd have to make that nomination and the president gets his nominee considered for the seat that came under his administration. suddenly there is no longer a stolen seat and we're on the path to a future in which the supreme court's integrity is not
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completely decimated. this article starts out as follows -- the outrageous obstruction of merrick garland's nomination to the supreme court court, the ten-month-long stonewall by senate republicans that not only stymied the high court's ability to do its job but effectively stole the nomination of a new justice from president obama is now delivering rewards to the cynical politicians who carried it out. having denied garland even a committee hearing from the time of his nomination in march until obama was safely out of office, the g.o.p.-controlled senate is
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now smugly offering that opening to president trump to fill. the new president who has repeatedly promised to select a new justice in the mold of the late conservative justice antonin scalia has said he will announce his nominee tuesday evening. this was written just before the president announced neil gorsuch as his nominee. the article continues, it's hard to express how head-shakingly unfair this is. trump will now have an opportunity to effect the balance of the increasingly polarized court for the next 30 or 40 years. influencing rulings on abortion, the rights of gay and transgender people, free speech, corporate union spending elections, labor
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issues, separation of church and state, ubiquity of guns and endless other hot-button subjects. trump never should have been handed this opportunity. the seat was obama's to fill subject to senate advice and consent. and he fulfilled his constitutional responsibility in good faith only to be kneecappee kneecapped by a body that would neither advise nor consent but merely gummed up the machinery in a transparent effort to conserve the court's trance parent majority. the g.o.p.'s feeble
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justification for its behavior that he had only ten months remaining in office was believed by no one. the senate's misbehavior affected more than just the court. it also constituted a new low in the tit for tat cycle of dysfunction in congress in which each side obstructs its opponents wherever possible, even if that produces a stalemate that brings the operation of government to a halt. working across the aisle to solve the nation's problems has gone out of fashion. the democrats have been put in a terrible bind. do they take the republican bait, declare the seat stolen and launch a filibuster or do they roll over and allow trump to appoint a scalia clone? what message do the democrats
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send if they allow themselves to accept this they have the suppinery without exacting any punishment? how should they fight if the nominee is truly outside the mainstream? and what if he or she is conservative that is well-respected and competent? what strategy makes sense then? it's an awful predicament and it's hard to see how it ends well. the democrats are not in a terribly strong position. they don't have a majority in the senate. and though they can filibuster, most senate republicans would sooner do away with the filibuster for supreme court justices than allow the seat to sit empty. that's the so-called nuclear option. at the end of the day, says this article, senate german -- senate majority leader mitch mcconnell will probably win this round and polarization continues at an ever accelerating speed.
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it should be but presumably is not ashamed of that contribution to history. his obstructionism exacerbating the weakening of government institutions and continued the role of bipartisan separation and if democracy is to work and the nation is to prosper, the political system must allow for compromise and rationality even among determined opponents. for now, another of justice scal or someone even more extreme will probably be enstooled threatening back same-sex marriage, offering more protection for powerful businesses and less for the environment. even in these difficult dates this disgraceful moves by senate
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republicans to manipulate the u.s. supreme court seat for partisan purposes stands out as sad and egregious. so that was the l.a. times article, january 31, when the g.o.p. stole merrick garland's supreme court seat to set the stage for a miserable battle. in the course of conversing about the dilemma we face, i've noted that there are three big problems. the first is that the seat has been stolen from one president
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and delivered to another in an effort to pack the court. the second is that the nominee from president trump is way outside the judicial mainstream. i've gone through many of the cases. but a third is that there is a big cloud hanging over this administration. the trump administration's connections to russia during the campaign and throughout the transition are numerous, and we keep learning about pieces of the puzzle every day. contact between the campaign and the russians are dialogue in itself is not necessarily wrong. but it is wrong if that dialogue
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was about how to coordinate to basically tilt the playing field in favor of donald trump and against hillary clinton. the russian activity was designed to change the outcome of the u.s. election. so that itself is a problem we have to pay a lot of attention to. we have to understand every piece of how the russians operated, and we have to convert that knowledge into a strategy that prevents it from happening again. and we certainly have to work with our allies to make sure that we help all of the democratic republics of the world resist such meddling by
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the russians. so far we have a pattern of a lot of contacts, and that pattern of trump associates misleading the public about meetings and relationships with russian officials does raise red flags. if meetings are innocent, why not be forthcoming? that's why we have to have a strong set of investigations to get to the bottom of it. we have to understand and recognize that what russia did in their strategy was equivalent to an act of war on the united states. they were attacking our core
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institution, the bedrock of our democratic republic, our election system. and that's unacceptable. and if anybody conspired with the russians, that's treasonous conduct, and we've got to get to the bottom of it. we certainly should get to the bottom of it p before this supreme court seat conversation continues. the subsequent handling of the investigation by the house intelligence committee and the actions taken by the chair of that committee, representative nunes, underscores how serious the situation is. we definitely have to get to the bottom of what happened. and the fact -- that fact only emphasizes how seriously the senate needs to consider slowing down, setting aside, pressing the pause button on the debate
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regarding the nomination of judge neil gorsuch. until the f.b.i. and congress complete the investigation of these contacts and the ongoing cover-up confirming this president's, president trump's lifetime appointment to the court is premature. on top of possible collusion, it is also worth remembering why it's so troubling that president trump has gushed about putin's leadership, altering some of our longest and most strategic relationships on their heads. putin operates a repressive regime, one that cracks down on freedom of expression and whose option leaders frequently perish in miss steer yus and u.s.s. --
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in mysterious and suspicious ways. someone carrying an item up to their apartment magically falls and dies or is shot down near the kremlin, or a whole host of different ways. the actions of putin are not the actions of a friend of america. the actions by putin are not actions that reflect values shared by the american people. they are not values honored in our tradition. they are not values embedded in our constitution. the putin strongman model is very contrary to our system of government. there are no checks and balances, and those who rise up
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in the streets are likely to be cut down in the streets. those who cry out for justice are likely to be silenced. those who march who improve things may well find themselves behind bars. that's putin. that's russia. we should not have a significant improvement in our relationship with russia unless there is a vast improvement in fundamental values of a free and fair society within russia. there is an enormous amount of
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evidence that the trump campaign was familiar with, in conversation with russia, and we will find if we pursue the investigations aggressively whether or not there was collusion. paul manifort, republican strategist and long time operator, joined president trump's campaign team last spring. he was elevated to be campaign manager after cory lundowski was fired in june. but with just three months to go until the presidential election, manifort resigned amid questions over his campaign rule and extensive lobbying history overseas, particularly in the ukraine where he represented a
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pro-russian interest. manifort also worked on a presidential campaign with others during the same time span from december, 2004, until february, 2010, crane presidential election even as the u.s. government opposed yank okovych because of his ties to vladimir putin. manifort was hired after the orange revolution overturned yanukovych's victory in the 2004 presidential race. according to a 2008 u.s. justice department annual report, manafort's company received
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about $64,000 from the party of regents over a six-month period for consulting services. that was in 2008. in 2010, under man manafort's tutelage, the opposition leader put the orange party on trial. returns from the presidential election gave yanukovych a narrow win over prime minister yulia tymoshenko, a leader of the 2004 demonstrations. yanukovych owed his comeback to a drastic makeover of his political persona and this makeover is credited to paul manafort. in 2007 and 2008, manafort was involved in investment projects
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with russian oligarch oleg darasposka and ukrainian oligarch dmitri ferstov. the associated press says that manafort had an $8 million annual contract to promote russian politics and media coverage in europe and the united states starting in 2005. in 1980, manafort, along with roger stone, were founding partners of the washington, d.c. -based lobbying firm, black, manafort, stone and kelly. roger stone, what do we know about that? that he's a former trump advisor and self-described master of political dark arts and has been labeled as the dirty trickster of delegate fights. he has worked with the campaigns of richard nixon and george h.w.
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bush and ronald reagan. and stone repeatedly claimed throughout the final months of the 2016 campaign that he had back channel communications with wick i leaks founder julian assange and he knew of the forthcoming document dumps which disseminated materials that were hacked by russia from democratic computers. he admitted in march, 2017, that during august of 2016, he had been in contact with someone believed to be tied to russian intelligence and is believed to be behind the hack of the dns. august 10, stone tells a local republican party group in florida i have actually communicated with julian assange. august 12, stone says on a podcast that he believes assange
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has e-mails deleted by clinton aides, deleted by clinton aides abadin and cheryl mills. he adds he knows he has them and they should be expected to drop in the next three months. quote, in fact i know assange has them, stone says, and i believe he will expose this information to the american people within the next 90 days. august 14, stone engages in direct messages with the d.n.c. hacker 2.0. according to direct messages reported by "the washington times" and the smoking gun. stone tells the hacker he was delighted twitter reinstated his account. a day later, stone tells them he communicated with assange and forthcoming material will be related to the clinton foundation. a day after that, stone tells radio host alex jones he has
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back channel communication with assange who has political dynamite on the clintons. august 18, stone says in an interview on c-span he has been in touch with julian assange through an intermediary, someone who is a mutual friend. wikileaks will later tweet we are happy to hear true information from everyone, but so far we have not heard from mr. stone. on august 21, stone tweets that it will soon be podesta's time. stone later says his tweet was about podesta's business dealings. august 26, an interview with
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brightbart radio mr. stone says i am confident that mr. assange has every one of the e-mails of the clinton hen muchwoman thought they had deleted and i suspect he is going to drop them at strategic times in the runup to this race. stone says on the 29th on local florida radio of the assange and clinton foundation, perhaps he has a smoking gun that will make this handcuff time. september 16, stone says on boston herald radio that he expects assange, wikileaks to drop a payload of new documents on a weekly basis fairly soon and of course we will answer the question exactly what was erased on that e-mail server. stone adds to assange i am in touch with him through an intermediary. october 1, stone tweets wednesday, hillary clinton is done. you know, you go back to the
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comments he was making where he seemed to know what was going to happen before it happened, and then we saw it happened. and clearly suggests from this public record the appearance that are hard to imagine in these conversations that there wasn't some form of colorado be a ration about what was going on, and that's why we need to get to the bottom of it. was there collaboration. it's deeply, deeply disturbing, those set of comments. and we have carter paige who worked for seven years as an investment banker at merrill lynch. his biography said took him to london, new york and moscow for three years in the mid 2000's
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before trump last year listed him as a foreign policy advisor in response to a question from "the washington post." paige has regularly espoused views at odds with much of the foreign policy community in washington, in particular questioning the u.s. approach toward russia and calling for warmer relations with the two countries. he has expressed views in support of russian president vladimir putin and harshly criticizeed u.s. policy. he has -- he is frequently quoted on russian television as a famous american economist. in september, 2016, u.s. intelligence officials investigated alleged contacts between paige and russian officials subject to u.s. sanctions, including ig or second. paige rejected the accusations, said he would take a leave of absence from the trump campaign. in january, 2017, paige's name appear repeatedly in the leaked
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donald trump dossier containing intelligence from the operative christopher steele in the employ of a private american firm. in january, 2017, paige is under investigation by the f.b.i., c.s.i., and others. paige maintains that he has done nothing wrong. in february, last -- well, not quite last month now, but february, 2017, paige stated that he had not met with russian officials in 2016, but two days later he appeared to contradict himself and stated that he did not deny news reports that he had met with russian ambassador serg gay kisyok during the republican national convention in cleveland, ohio. this month, paige was called on by the senate intelligence committee investigating links between the trump campaign and the russian government.
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michael flynn. michael flynn attended a gala in moscow in honor of russia today, now known as r.t., a russian government-owned english language media outlet on which he made a semi regular appearance as an analyst after he retired from u.s. government service. flynn was paid $45,000 by russia today for the 2015 talk and provided an all-expense paid three-day trip provided by russia. national security advisor michael t. flynn was forced to resign after it was revealed that on december 29, 2016, the day obama announced sanctions against russia, flynn discussed the sanctions with russian ambassador to the united states. flynn had earlier acknowledged speaking to the ambassador but denied discussing the sanctions. "the new york times" on march 2 reported that the ambassador had
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met with michael flynn and jared kushner in december, 2016, to establish a line of communication with the trump administration. it is a series of contacts. what we need to know is did these contacts involve communications for coordinating campaign tactics? did russia release information on hillary at a time suggested by the trump campaign? was there any form of coordination? that's why we need this robust investigation. we have the investigation. the house intelligence committee. that investigation has sputtered and has all the appearance of going no where, and it's been compromised by the comments of the house chair.
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there is another investigation on the senate side with senator burr as the chair and senator warner as the ranking member, and they are working pretty well together. we hope that that continues. i know that they believe that we have a responsibility to get to the bottom of this issue, and i know there are many members on both sides of the aisle that put a high priority on getting to the bottom of this issue, and so i applaud the work the senate committee is doing, but we all know that the senate intelligence committee is a hard place to get information out of. for example, when the torture report was completed it was extraordinary difficult to get that into the public hands. so this shouldn't be the only strategy, and certainly we have another strategy with the f.b.i.
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and we had the debriefing on the hill from the f.b.i. director a week ago monday. he came to speak to the house and he shared a fair amount in terms of confirming that investigations are underway. and that's important that the f.b.i. use its talents and assets and connections to find out what really went on and fo get to the bottom of this. i'd like to also see us have a special prosecutor who pursues this, who puts together a team and specifically drills in to get to the bottom of this. i'd like to see a bipartisan commission, watergate-style commission so some of this can be done in the public realm, not hidden behind the veil of classifications. and of course i'd like to see a robust investigation by the press, by the fourth estate.
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if all of those things happen or if some don't happen but the others are done well, we look at the bottom of this. and the sooner the better. i'm going to continue by sharing some comments that the senate democratic leader made in a floor speech on february 16. these are excerpts of senator schumer's floor speech. he said the recent reports about general flynn detailing constant high-level contacts between members of the trump administration and the russian government raise serious doubts about this administration's
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competence in the realm of foreign policy and national security and even graver doubts about the sanctity of our democratic process. we do not know all the facts, and in the coming days and weeks more information may well surface about these disturbing revelations. but we already know that something is rotten in the state of denmark. all of us can agree that right now what are required are the facts. we have to elevate the scope of russia's interference in our election and assess if ages of their government have penetrated to the highest levels of our government. throughout the process we have to avoid jumping to conclusions or engaging in wild speculation. we must seek the truth, the
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whole truth and nothing but the truth. once we have the facts at our disposal, democrats and republicans alike can debate what to do next. senate democrats are faithfully committed to keeping this issue above partisan politics. the gravity of this issue demands nothing less. i'm very hopefulful the other side wants to get all the facts just as our side wants to get at all the facts. this is an issue on which patriotism must prevail over politics because before we are democrats or republicans, we are americans with respect for the rule of law. those are excerpts of senator schumer's floor speech on february 16. and i certainly passionately agree with him.
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this investigation of what went on in the election is one in which patriotism must prevail over politics. because above all, we are americans with respect to the rule of law, and i will add that as leader in america here in this senate chamber, we have a huge responsibility to get to the bottom of this, to urge forward the investigation by the senate intelligence committee, to make sure the results as appropriately compiled and vetted to protect confidential sources is shared with the american public, that the american public can know what transpired and that we then act on that information.
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and if that information shows that there have been treacherous acts of collaboration with the russians to undermine the indeath of our elections, we must pursue it to the full extent of the law. this next excerpt is from senator schumer's speech calling for a special prosecutor on march 6. my republican colleagues should strawnd what they know in their hearts is the right thing to do. do a strong and impartial investigation and get to the bottom of this. that is where the american people want them to go. the american people disagree with president trump and want a thorough and impartial investigation, even 43% of republicans, they are right. a special prosecutor is the best way to ensure that the investigation proceeds impartially for several reasons.
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in a conversation with "politico," our democratic leader said -- and this was on march 21. you can bet if the shoe were on the other foot and a democratic president was under investigation the f.b.i. and republicans would be howling at the moon about filling a supreme court seat in such circumstances. it is unseemly to be moving forward so fast and confirming a supreme court justice with a lifetime point while in big cloud of investigation hangs over the presidency. the es with posed notes it's unseemly to confirm -- f.b.i. probe of trump campaign. i'd like to point out that it's the height of irony that the
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convince held the supreme court open for nearly a calendar year while president obama was in office. we're now rushing to fill a seat whose campaign is under investigation by the f.b.i. it is unseemly and wrong to be moving so fast on a lifetime appointment in such circumstances. march 21, a report on the hill by jordan carney. the republican leader is urginga vote on neil gorsuch because of ongoing investigation between ties between president trump and russian officials. it is moving fast to confirm a supreme court with a life final
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appointment while this big gray cloud hangs over the president's presidency. schumer's request which is unlikely to gain traction with republicans, comes as gorsuch is into his second day before the judiciary committee. but democrat argued it was the height of irony that the republicans blocked president obama's nomination for the seat left vacant by antonin scalia's death but are rushing to confirm gorsuch. just before i started speaking yesterday evening, the majority leader came to the floor gave a
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short speech and said he was filing a petition to close debate. and that is the first time in u.s. history that a petition to close debate has been filed on the first day of a senate debate generally the senate will, if people have more to say, go for many days, go for weeks without somebody filing a petition to close and shut off debate. why are we rushing into the completion of this nomination in this extraordinarily inappropriate condensed, accelerated fashion when there's so much to consider? this is not a the senator from of normal times. this is a nomination for a seat
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stolen from one president and delivered to another, the first time it happened in u.s. history. this is a nomination during a moment in which the president making the nomination has a team that is under investigation for potentially conspiring with the russians to change the outcome of the presidential election. that is the big cloud that must be dispelled and resolved, and should be resolved before this conversation on the floor continues. and this is the nominee who comes from the far right of the spectrum with case after case after case, the frozen trucker case, the autistic child case, case after case in which he finds a way to turn the law to do the opposite of what the law was written to do. as i read through those cases over the course of the last roughly, nearly, well, more
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than 11 hours, you see the pattern of decision after decision being made for the powerful and the privileged, of writing dissents from the majority that says that this decision by a labor board was very reasonable and in compliance with the law because it exactly fits the law. but neil gorsuch wrote a dissent because he wanted to find a way to find for the powerful organization. so here we have these three big factors. this is a time when there should never be a petition to close debate because people have a lot to say and there's 100 members of this body. and when they expend their energies and they're through with their conversations, then ask the question are people ready to close debate?
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then at that moment are there 60 votes for this nominee? but this effort to ram this through not only doesn't fit the tradition of the senate, doesn't fit the circumstances, but it raises a question, is there an effort to put this through before information comes to the surface that might change the outcome? at 11:00 last night we got this posting, or i guess it was posted at 11 and we got it at about midnight here on the floor of the article by "politico" that laid out -- and they laid out a side-by-side comparison of language that gorsuch had used
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that was essentially lifted from other people's writings without attribution. several experts have said this meets the standard of plagiarism because the language was lifted without attribution. that's what plagiarism is. others said maybe not. maybe doesn't quite meet that standard. is this one of the reasons that we're trying to shove this nomination through in such an extraordinary way when its under such a cloud to begin with? are there more information like this that needs to come out? this is a guarantee that senators would vote against closing debate if there is the possibility that this is trying to be done fast to have a vote before significant information is put into the public realm. "the new york times" had an
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article, march 29, senate intelligence committee leaders vow thorough russian investigation. march 29, 2017. senators leading the investigation into russian interference in the november election pledged on wednesday to conduct an aggressive inquiry including examination of ties to president trump as they sought to distance themselves from the flagging efforts in the house. in a conspicuous show of bipartisanship during a fractious time at the capitol, the top republican and democrat on the senate intelligence committee vowed to forge ahead by interviewing key players connected to mr. trump and pressing intelligence agencies to provide all relevant information. but their display of collegiality seemed intended primarily as a contrast to
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explosive and often bewildering statements in recent days from the house intelligence committee, representative devin nunes of california whose perceived closeness with the strump white house has raised doubts about his ability to conduct an impartial investigation. the chairman of the senate intelligence committee, richard m. burr, suggested on wednesday that he would not retreat from a process that could damage the reputation of a republican president. quote, this investigation's scope will go wherever the intelligence leads, mr. burr said during a rare joint news conference. asked later whether he had encountered any direct links between mr. trump and russia's interference, mr. burr was stern. we know that our challenge, he said, is to answer that question for the american people. the senate investigation amounts
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to a correct test for republicans under the trump, a chance to prove their willingness to ask uncomfortable questions of a republican president, even if the answers might weaken his and the party's standing. democrats are skeptical, but they were also mindful of the senate most likely remains their best hope on capitol hill for gathering information, making them disinclined to abandon the senate intelligence committee's investigation. the f.b.i. is also investigating. on wednesday, mr. burr and his democratic counterpart on the committee, senator mark warner of virginia, offered some evidence of what they have reviewed so far, saying they have begun to schedule the first of at least 20 interviews. mr. warner drew attention to reports of perhaps 1,000 internet trolls in russia generating fiek fake news stories and targeting them at swing states like wisconsin, michigan and pennsylvania. russia's goal, vladimir putin's goal, said mark warner, is a weaker united states.
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mr. burr noted that the russians were now actively involved in the french elections. on thursday, the committee will hold a public hearing on russian influence on campaigns broadly. the two also left little doubt that they viewed the house's unruly process as an afterthought, one that should not reflect on their own efforts. let me set the ground rules real quick, mr. burr said, before taking questions. we'll answer anything about the senate intelligence committee's investigations. we will not take questions on the house intelligence committee. mr. burr could not suppress a smirk and mr. warner laughed outright. but the drama in the house has already complicated the senate's task. according to senate committee members, leading the public to question congressional inquiries across the board. i worry that the chaos on the house side has affected the public's view on whether congress can credibly investigate this matter, said senator susan collins,
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republican of maine, a committee member. i believe the answer to that is still yes, and the senate is the place. lamenting the debacle in the house, senator kamala harris of california said she believes the public is now shifting to us. congressional investigations are not related. their focus overlapse, receiving the senate panel to defend itself in the face of mr. nunes' assorted claims. well, a vast majority of republicans in the house have stood by mr. nunes amid calls for him to recuse himself, his furtive maneuvering, including bypassing the committee to brief the white house about relevant intelligence has placed white house committee members in a difficult spot. and at least one republican lawmaker representing charlie dent of pennsylvania suggested the senate should take the lead on congress investigation of ties between the president's orbit and russia. the senate majority leader has
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long called for a special prosecutor of the select committee saying the senate could do the job through regular protocol. on the house side, a string of perplexing decisions by mr. nunes has threatened to unravel the panel's investigation altogether. last week, he abruptly announced he obtained information indicating the people associated with the trump transition may have incidentally caught up legal surveillance at foreign operatives. he also bypassed the committee's top democrat, representative adam schiff of california, to brief mr. trump. the president seized on the information. evidence for his thoroughly debunked claim that president barack obama had wiretapped trump tower and an allegation dismissed not only by senior law enforcement officials like the f.b.i. director, james comey, but also by the heads of the senate and the house investigations, including mr. nunes. another obstacle to bipartisanship came on monday
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with the revelation that mr. nunes had viewed what he characterized as dozens of reports containing classified information on the grounds of the white house. democrats fumed, their suspicions fueled by speculation that the source of mr. nunes' information was a trump administration official. mr. nunes may have even coordinated with the white house. while mr. nunes defended himself by saying he needed to be at the white house to view the sensitive documents, one can peruse sensitive information at the capitol and other spots around washington. the story of the house investigation melting down continues, and it really emphasized how important the senate investigation is, and i have been very impressed by senator burr and senator warner working together to pursue that investigation. i feel that more needs to be done. yes, the f.b.i. needs to
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investigate and the senate intelligence and the press, but we should also have a special prosecutor. we should also have a bipartisan commission. but if each part of this puzzle pursues their work aggressively, good faith, we may get to the bottom of what went on, which is so important to hold people accountable, and if traitorous crimes have been committed, they need to be pursued to the full extent of the law. the article goes on that democrats have also chafed at mr. nunes' shuffling of the hearing schedule earlier this month with mr. schiff by his side, he announced plans for three former officials to testify, a group that would include sally yates who briefly served as acting attorney general and alerted the administration that michael flynn, mr. trump's former
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national security advisor, appears to have lied about his contact with russian officials. last week, mr. nunes scrapped that public hearing, arguing that the committee first needed more time to question intelligence leaders, but on tuesday, he said his security had been postponed as well as "the washington post" reported that white house officials had tried to stymie ms. yates' testimony. democrats have accused mr. nunes of trying to stall not only the investigation but also the committee as a whole. mr. warner said on wednesday i would like to see miss yates at some point. at the same time, the yates investigation has not been blemish free. well, this summed up by saying that each of them saying that they are partners, they are working on this together, and i
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urge them to continue that work aggressively. i will do something i have never done. i will admit i voted for mr. mr. burr, said mr. trump, but i have a job in the united states senate. and we have a job to address. we we are here at this critical moment wrestling with what to do with this stolen senate seat. knowing that if we confirm a nominee to this seat and confirm and complete the theft, it will damage the court through the rest of our lifetimes. it will set a precedent that will cause more purr julie, more politicization. it will call into question every 5-4 decision of the court.
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that's our responsibility to figure our way out of this. one of the articles i read earlier suggested a path out of this. keep this seat empty, set this aside until there is a second seat, and then the nominee, merrick garland, who should have been considered for the first seat would be considered and the second nominee would be who president trump wants to put forward. maybe it's the same nominee we have now, neil gorsuch, maybe it's somebody else, but the point is you eliminate the stolen seat syndrome. maybe there are other pathways out of this, but proceeding to the completion of this week, in confirming neil gorsuch, that is where this weekends, it is truly
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deeply damaging to the supreme court for the balance of our lives. let us not be partners to such a destruction of a key branch of our government. and the damage won't just be to the supreme court. it's also to this body. because once this body conspired in the theft, the wounds here are deep. and will continue to cause tremendous acrimony as we go forward, and they will lead to future acts of the senate, perhaps balancing out the first theft with the second theft, and so on and so forth and which nobody wins. so let us come to our senses and not have this week end in the
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manner in which it's been predicted that it will. npr wrote or has a piece done by phillip ewing. four unanswered questions about the f.b.i.'s russian investigation. march 20. f.b.i. director james comey lit the fuse monday on a political time bomb, and no one, including him, knows how long it will take to burn or what kind of damage it may cause when it goes off. comey confirmed to members of congress that his investigators are looking into possible collusion between the campaign that elected president trump and the russian government. in fact, he said the f.b.i. has been doing so since last july. the signs have been there from press reports to the announcement by attorney general jeff sessions that sessions would recuse himself from any such probe.
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now comey's disclosure to the house intelligence committee removes all doubt that the f.b.i. believes there is sufficient evidence to look into the connections between trump's one-time political aides and the kremlin. the case that russia interfered in the presidential campaign has been made. the u.s. intelligence community laid out an unclassified version in december, and then president barack obama responded by expelling a group of russian spies and sanctioning some of its key officials. but details about the role trump's team might have played in the making of that mischief still are murky, and monday's hearing did not include much explosive new information. in fact, the panel's chairman, california representative devin nunes who served on trump's transition team and his fellow republicans spent as much of their time as they could drawing the focus away from the russian
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collusion narrative. the real outrage, republicans argued, is the leaking of classified information "washington post" and other newspapers, especially the identity of former lieutenant general mike flynn as having been swept up in u.s. government surveillance of russian ambassador sergey kitzyak. flynn resigned after a brief stint as trump's national security advisor and has since retroactively registered as a foreign agent for his work representing turkish interests. democrats revealed on friday that flynn had also taken more than $50,000 in payments from russian government entities. democrats led by ranking member adam schiff, also of california, put trump and the russians together as closely as possible including in an extended open
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statement by schiff that laid out his theory of the case. much of that schiff's statement, however, relied on information that's already publicly available, which is being called into question. monday's session did not include major new details, but it did raise new questions about the -- some of which lawmakers may answer at a second session now and some of which may not be cleared up until the f.b.i. announces the results of its investigation. how much evidence to still could be discovered and how reliable is what's now public? shift crafted a narrative about the first exploration of the candidates from july toll august of 2016. if moscow simply learned more about the u.s. president, it shifted to hurt the next.
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press rosser and some that appears in a controversial passed from the former british intelligence officer to comey by arizona senator john mccain. npr and other news organizations have refrained from reporting such details because of the unknown providence of the -- but does some of the information has been verified. the democrats' case also rests on conversations between trump advisors and people connected to the russian military service, g. rumplet, or other top russians. how much more detail exists in what was said about those meetings. how much investigators making to interview the campaign advisors. the first question in the npr report is how much evidence is still to be discovered and how
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reliable is what's now public. might trump aides have clueded with russia without knowing it. one new thread from monday's hearing came as an exchange between comey and mike quickly to ask if americans could help a foreign power and not know about it? yes, he said, they might give information to what he believes is a chinese researcher or an american might fall in love with someone and not realize that he could be involved with a foreign agent. that could explain denials by people at the center of the issue, including an aide who resigned. new york times referred to maniafor the about u.s.
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intelligence officers documenting many connections between the trump camp and elections. maniafor the called it absurd and said it's not like they wear pages that say i'm a russian intelligence officer. this caused head scratching at the time it appeared prks but -- appeared, but the exchange of money caused them to say they were agents but were used as dupes. the npr article, what did trump know and when did he know? if this results in no new information of ties between trump's camp and russia, they will get rid of an albatross that has been around their next for months. they they reveal lengths that have not been aired publicly, that could escalate quickly and land the president and top
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campaign aides in hot water. trump never retreats or apologizes, he flips from acknowledging the russian miss chief and sometimes dismissing it. that strategy has continued to be workable. the republican aides on capitol hill have shown continuing hadness to carry water for the white house by handling inquiries like those on monday. but charges against trump aides are new revelations would change all of that and fast. democrats may never forgive comey for revealing that the f.b.i. resumed inquiries into hillary clinton's private e-mail server, which they say has a close connection to trump now that the allies on the hill are
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also involved. another question in the npr report, how will russia respond to the investigations and their outcome. comey, national -- comey and national security agency director michael rogers have taken care not to say whether they believe whether russia influenced in succeeding in influencing the 2016 election, will russian president vladimir putin turn out to have invested wisely or to have been the dog that caught the car? if put inwanted the u.s. to relax the obama era sanctions imposed, that ship may have sailed. this may have made the appearance of a deal impossible. an american deployment to eastern europe have continued. none of this means, however,
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that putin has finished meddling in american politics. comey told members of congress that the russians for their own purposes are likely satisfied with their work having sew -- sown confusion in the democratic process and may try it again. we interest to assume they are coming back, he said and we have to assume that they are also working to undermined the elections in other democratic countries. and that we need to be working with our allies, fellow democracies to fully understand and thwart this russian strategy of undermining the foundation for our democratic repliks -- rer republics, so the npr article raised very good questions, questions to which we
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don't have answers, but just the breadth of the questions shows how significant this situation is. i understand the sun is coming up behind the supreme court. i was struck just how beautiful the weather was yesterday while the weather inside this building was so dark and gloomy. mother nature gave us a beautiful, beautiful day, but partisan politics gave us a very, very ugly setting here in the senate chamber as we started debate over a nominee nominated to fill a seat that it not open up under president trump's watch to which he has no right to
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propose a nominee. this is a seat stolen from the obama administration, delivered to president trump. wouldn't it have been something if president trump said, you know, i talked a lot about bringing this country together and that tarts by honoring -- starts by honoring our institutions and so i'm going to heal thrift. i'm going to end this theft by nominating merrick garland. 16 times the president could have said -- 16 times in the history of our country there's been an open seat during an election year on the supreme court and we already know the past and that's 15 times the senate considered the nominee and either confirmed them or rejected them, but always considered them except with merrick garland. we're going to heal that damage, the president could have said and so first we'll put forth merrick garland and then when a
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seat opens legitimately on my watch, i'll put forward a nominee i would choose according to the principles i laid out in my campaign, but i'm not going to damage the supreme court for generation to come by participating in this strategy of packing the court. you know, if the president had given that speech, that would have been an impressive moment -- a moment of bringing this country together, of saying he's the president not of the republican party but of the united states of america that has these beautiful key branches of government -- coequal branches, the executive branch, the legislative branch, judicial branch, bringing all three of those together in that conversation saying what the legislative branch did sets the stage to damage the supreme
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court and as president i won't participate in it. i will solve it. i will bring people together. i'm the great negotiator. i know how to make a deal. right now the only deal is a bad deal that damages all three branches, a deal that was crafted within a few minutes following the death of antonin scalia. it was on the same day that the majority leader came to the floor and said -- we are going to do something never done before in american history, we're going to steal the seat. that's not the words he used. his words were -- we're not going to have any senate action on this nominee, the nominee that the president will put forward for this seat. if only at that moment the senate had been the cooling saucer, that's the idea that washington reputedly put
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forward. it's a nice image that sums up the difference between the house and senate. senate elected for six-year seats, rotated every two years. when there are wild ideas crafted in the passion of the moment, the senate comes along and says: we'll bring a little more experience and thoughtfulness. we'll bring a little more deliberation and we will craft something that will strengthen america, strengthen our institutions, not destroy them. but we didn't have ta reaction on that -- that reaction on that day when antonin scalia died. instead we had not the cooling saucer, but we had the immediate rush to a principle that will do so much damage. i say principle only in the context of an asserted argument. that is an argument that, we, it's an -- well, it's an election year, we shouldn't
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consider someone, it should go to the next president. there is no history behind it. as i pointed out, 15 seats were open during the election year in the history of our country and the senate acted on every one until the 16th when antonin scalia died and within a couple of hours, the majority leader announced that we do what we never did and that is fail to honor the advice and consent responsibility of the u.s. senate. mr. durbin: will the gentleman from oregon yield for a question without yielding the floor? mr. merkley: he will do so. mr. durbin: as i recall there was a moment in 1998 in the last year of president reagan's vacancy when there was a vacancy on the supreme court. it was during the so-called lame duck year as many republicans characterized it. at that time the -- i believe
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the senate judiciary committee was chaired by joe biden in 1988. president reagan sent the name anthony kennedy to the senate to fill a vacancy on the u.s. supreme court in his last year in office, election year, so-called lame-duck year, and at that point the democratic senate held a hearing and a vote and sent anthony kennedy to serve on the u.s. supreme court where he continues to serve. so those who argue on the other side that everybody's doing it, you'd do the same thing if you could and that sort of thing, i believe that's belied by the recent history when the democrats were in the majority in this chamber. is the senator from oregon saying this is not the only time in history this has occurred and senator mcconnell ignored this and decided not top even have a hearing or a vote on merrick garland, something that has never been done in the histy of
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the united states senate -- history of the united states senate which brings us to this moment. is that the point the gentleman is making? mr. merkley: my colleague from illinois is absolutely right. in the middle of the night, a few hours ago, i pointed out this evidence of different style of action didn't just depend on the history books because you could look a few yards here from the senate out to the supreme court where justice kennedy sits and gone through the process you just described. mr. durbin: i ask the senator from oregon, as well through the chair, in this situation where senator mcconnell, as the republican senate leader, has exercised his so-called nuclear option to stop merrick garland, president obama's choice for filling the vacancy on the supreme court, does the senator from oregon believe, as i do, that this is part of a concerted effort by the republicans to take control of the federal judiciary, the fact that we left
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the end of the last year with 30 federal judicial nominees on the senate calendar, nominees who had received a bipartisan vote in the senate judiciary committee, they were left unresolved, unvoted on when the senate went out of session. does senator from oregon see, as i do, a pattern of conduct on the republican part when it comes to filling the courts? mr. merkley: my colleague as pointed out through your question the challenge we have with the appropriate treatment of our advice and consent responsibility isn't simply a problem with the supreme court nominee, but with strategies to prevent the consideration of judges from our former president, both at the district court and at the circuit court level, leading to the circumstances you described. mr. durbin: is the senator from oregon also aware of the fact
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that president donald trump during his campaign released a list of 21 names of potential nominees for the supreme court and then thanked the federalist society and the heritage foundation for preparing that list? the federalist society, a republican advocacy group here in washington, d.c. now brags that every member of the supreme court appointed by a republican president has either been a member of or cleared by the federalist society before they took the bench? mr. merkley: i am aware of that, and it disturbs me that essentially the responsibility of the president to find the right person to place on the court was farmed out essentially to these two groups that you mentioned, and while often people will say, well, did the president ask the nominee a particular question about how they might rule on x., y. and
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z., i'm sure it's quite likely that these groups did ask those sorts of questions in developing their list of 21 potential justices. mr. durbin: i wonder if the senator from oregon would yield for another question through the chair? i would ask him when it comes to the federalist society, like so many of these dark money organizations, they refuse to disclose their donors. they say it's to protect their identity from harassment. it's also protecting the american people from the truth. the three that we do know have been actively involved would be the koch brothers, a well-known group supporting republican candidates, the richard mellon scaife family foundation, as well as the mercer family which is now merging with millions and millions of dollars, supporting these republican causes. i would ask the senator, is it a leap of faith for me to think that they would not be working so hard to put someone on the court unless they felt that person was going to rule along the lines that they believed? mr. merkley: i think that that would not be a leap, a leap of
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judgment or analysis. clearly, the groups like the koch brothers believe that their interests are deeply connected to the decisions made in this body, and they have invested vast resources into the campaigns, so it is not just that they said well, let's go down and talk to people in the senate about our particular interests as coal and oil billionaires. no, they decided to change the makeup of who sits in this body. and in 2014, the investment involved going into louisiana and arkansas and north carolina and iowa and colorado and alaska and several other states, including my state, the state of oregon, and they won most of those states that they invested in, and then they sent a message
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in january, 2015, by saying and the next election we are prepared to spend the better part of a billion dollars, and that was heard very loudly in this chamber, and the first bill up was a koch brothers bill, and you see their influence in all kinds of ways. and indeed, i mean, i believe that the reason we are here today in this conversation is in large part because those who invested in creating the majority that we now have in this chamber wanted to make sure that there was a supreme court that would sustain the citizens united ruling that allows this dark money of which you speak. mr. durbin: i'd ask the senator from oregon through the chair again, during the course of the senate judiciary committee here, senator sheldon whitehouse raised this question about dark money with neil gorsuch, the nominee for the supreme court,
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and asked him if he was aware of the fact that millions were currently being spent on ad campaigns and mail campaigns across the united states to promote his nomination and whether neil gorsuch felt that the source of this money should be disclosed, and as far as we could bring the judge on this subject, he said well, someone should ask as to where the money is coming from. that i guess is a pretty bold statement because many republicans don't believe it's fair to even ask where the money is coming from. there was a time when even the senate majority leader used to say i'm not going to complain about the amount of money. i just want to make sure it's all disclosed. well, he has completely vacated that position. he doesn't want disclosure. he doesn't want the american people to know where the money is coming from. i don't know if the senator from oregon noticed the television advertising here in washington where there is a lot when an issue like this is before us, but the television screens at least for those morning talk shows was inundated with
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advertising in favor of neil gorsuch from groups like the 45 committee, judicial justice committee. they make up these names right and left. i asked the senator, when it comes to decisions like citizens united, does that give us clear evidence of why the republicans are fighting so hard to make sure they put the right person on the supreme court? mr. merkley: i say to my colleague from illinois that the entire situation we're in revolves around the issue of dark money and having a person on the court who will sustain that flow. that citizens united decision was a 5-4 decision. four justices laid out the case that this unlimited funds and often secret funds are corrupting our american political system, and if one wants an example of that corruption, simply look at the vast change within a short period of years of the position
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of our colleagues on the right side of the aisle in regard to the environment. we had many colleagues who were very concerned about carbon pollution coming from the extraction and burning of fossil fuels. they wanted to make sure that we had a sustainable planet to pass on to our children, our children's children. it was following a republican tradition and being involved in things like the environmental protection agency creation with president motorcycles and the clean water act and clean air act, and in a short period of time, like a shallow pool beneath a hot sun, it just evaporated, that concern for the environment just disappeared, did dissipated. -- it dissipated. and the result is today that we have virtually no support to take on this major environmental threat in a bipartisan fashion. and that corresponds to this flow of dark money from the oil
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and coal billionaires into the campaigns for the senate and united states of america. so it's a deeply disturbing situation in which absolutely a lot of the explanation of why we have a stolen senate seat and why we have this nominee and why it's being rushed through in a way that no senate seat has been rushed through ever before. that is, yesterday, tuesday, just shortly before i started speaking last night, the majority leader came to the floor and said that he was filing the petition to close debate. that is the first time in u.s. history that's been done on the first day of the debate. that is the type of, i guess, completely focused effort to complete the theft that began last year. mr. durbin: i would ask the senator from oregon if he would further yield. neil gorsuch, the judge from the
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tenth circuit, has now been nominated for the supreme court. has had some noteworthy opinions. one was the hobby lobby case. it's interesting the parallel between hobby lobby and citizens united. in citizens united, the supreme court said we believe that money is speech, and we believe that the protections of the first amendment extend to corporations who should be treated like persons when it comes to their right of free speech. in the hobby lobby case, he reached a parallel decision, neil gorsuch, who is head of the supreme court, giving good credibility to the argument that the republicans know why they are pushing for this man to go to the court, because this was a case where the hobby lobby company, which has stores across the united states owned by the greene family. the greene family had their own special personal religious beliefs when it came to family planning and border birth contr.
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and so they refused to provide for their 13,000 employees across the united states any health insurance plan that provided for methods of birth control which they found personally offensive, and they don't -- they said that this was a corporate position that they were taking a company position. so it was neil gorsuch with others on the tenth circuit court that decided to expand the definition of personhood again to include closely held corporations like hobby lobby. now, the net result was that the owners, the greene family, were able to say we're going to stand up for our religious beliefs when it comes to family planning and to say that 13,000 employees, that those employees' personal beliefs, the religious beliefs of each employee really made no difference. from the viewpoint of judge gorsuch, once the owners of the company had decided what was good, principled religious
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conduct, they could impose that on their employees. so there is a parallel here where citizens united said a corporation is a person, judge gorsuch in hobby lobby said a closely held corporation is a person, and the citizens united case they said this person, corporation person has the right of speech. in the case of hobby lobby which judge gorsuch wrote, he said this corporation has the right of freedom of religion, to exert their sincerely held religious beliefs. so i would say to the senator from oregon, it's clear to me that they tested judge gorsuch in the tenth circuit and he came out ahead when it came to the basic principle that corporations should somehow be treated as persons when it comes to rights under the constitution. that to me is hard to imagine. i just can't -- i can't fathom how they could stretch the meaning of person to include corporations when it doesn't say
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so expressly in any of the statutes that were referenced here, and i haven't seen a lot of corporations being -- pled guilty and being sent to prison. it doesn't happen much. so my question to the gentleman from oregon is whether or not when it comes to the clearance of neil gorsuch for the supreme court seat, this open seat on the supreme court, whether they found the hobby lobby decision something that said to them this man would believe in ?iets had he been on -- believe in citizens united had he been on the court at the same time. mr. merkley: i will say to my colleague from illinois, we will probably know the full vetting that took place and the conversations that took place, but your observation that hobby lobby involves a parallel with citizens united is absolutely right. citizens united, the court said the corporation gets these political rights. that is, the ability to spend money in campaigns, unlimited funds, and in hobby lobby, the
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corporation gets kind of religious rights, if you will, the ability to overrule not just through the benefits that they provide to their employees but to trump the religious choices of their employees. so it's kind of a superreligious power, if you will, choosing the corporation over the people. and in both cases, there is this element of choosing the corporation, promoting it, exalting it over the rights of individuals. jefferson made a comment in a letter where he talked about the philosophy of the mother principle, and the mother principle he said is that the only way our government will proceed to fulfill the will of the people is if each citizen has an equal voice. not vote but voice. vote was a big piece of it, but he chose the word voice, as did president lincoln on another
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occasion. and the point he was making is that you have to have a place where everyone can weigh in and more or less -- in more or less an equal fashion. and the opposite of that is citizens united, where an individual who is a multibillionaire can weigh in massively by buying up the airways, the radio waves, the television waves, the web advertising, the social media scrolling and so forth, all of this, tools that didn't -- didn't exist at the time that we were formed. and so this ability for the wealthiest to do a citizen sounm sound system that drowns out the voice of the people, just as you have this situation in hobby lobby where the religious preference of the corporate entity can trump the religious preferences of the employees.
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mr. durbin: if the senator from oregon would yield further, it's interesting, when i started trying to find out the source of the money for these television ads that support neil gorsuch for the supreme court, i went to something, the 45 committee i mentioned to you. i had never heard of it before. i -- it's hard to keep track of them and the largest donor in terms of money was sheldon adelson, a man out of las vegas who has become celebrated, if not notorious, for putting millions of dollars into these political efforts on behalf of candidates from the right. some say from the extreme right. i would also ask the senator from oregon if during the course of his review of judge gorsuch's record he came across the transam trucking case which was really explored at length in the senate judiciary committee. many of us felt that this was
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such a clear definition of the values of neil gorsuch who tends to rule on the side of big business and corporate elites over and over again. the case involved ra truck driver -- a truck driver who was driving on interstate 88 in january a few years ago during a bitterly cold period of time. had trouble pulling his trailer, pulled it off to the side of the road and realized the brakes were frozen. he called the dispatcher and the dispatcher said whatever you do stay with the truck. the repairman is on the way. he fell asleep and when he woke up to a phone call from a member of his family, his legs were number and he had trouble breathing. it turned out there was no heater in the cab of the truck. there he was facing hypothermia
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and again the dispatcher told him not to leave the truck. he decided the idea of dragging this truck down the interstate was dangerous and the idea of staying in the truck could threaten his own life and so he made what i consider to be a reasonable decision. he unhitched the trailer, took the truck to the gas station, filled it with gas, warmed up and went back to the trailer. for that he was fired. because he was fired he was blackballed from driving another truck. this driver, al fonz madd -- alphonse mad inn came to my office. some people said you can file a complaint for unfair dismissal. i see you have a photograph of him there. he told me he went to the department of labor, they handed him a form and with a ballpoint
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pen he filled it in as to what happened to him protesting this dismissal and firing. he said he was shocked to get a letter to say, you're right, you win. he thought that was a pretty good thing. but then the appeal started and it went to the federal court system. by the time it got to the tenth circuit where judge gorsuch sat, seven different court judges an administrative judges considered the case of al fonz -- alphonse maddin. only one judge said it was the right thing to do, neil gorsuch, the man who aspires to be on the supreme court. one of my colleagues, i think it was senator fracken, said to judge gorsuch, what would you have done if you were sitting in that truck, what would you have done if you were facing freezing to death or dragging a trailer on an interstate endangering the
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lives of other. judge gorsuch said, i never really thought about it. that gets to the heart of what we're talking about here. he thought about it enough to rule against the truck driver who faced that terrible choice in his life, but he didn't think for a moment what a reasonable, ordinary man would do under the circumstances. he decided to rule for the trucking company, for the corporation. when you consider that this -- that they have ruled on the chamber of commerce side over 60% of the time, it's pretty clear why they have a fond feeling for neil gorsuch as the next supreme court justice. does the senator from oregon see the linkage here between what the republicans are look pg for in a supreme court -- looking for in a supreme court nominee and what they would find in this transam trucking decision? my colleague from illinois brings up the frozen trucker
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case as it has often been referred to and how it demonstrates a -- an effort to really twist the law away from its original purpose in order to find for the powerful over the individual. in this particular case when he wrote his -- wrote up his viewpoint, neil gorsuch revealed a whole lot because here was a law specifically crafted to protect truckers from being fired if they operated for personal safety or the safety of the public, and clearly for him to have driven that trailer down the road -- a fully loaded trailer without brakes because the brakes were frozen would have been dangerous for all kinds of people. to stay in that cab freezing to death was dangerous to him. you can interpret the concept of
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operating a truck and the law said refusing operate a truck and -- well, is -- does refusing operate ra truck mean -- a truck mean you refuse to operate it in the manner you were told to or does it mean without the cab or trailer? and gorsuch zeroed in on the fact that he didn't refuse to operate because he droaf the cab. he wasn't operating in any common person's understanding. he left the trailer there. he wasn't driving it down the road. but he search for that slight little way that he could say, well, that doesn't quite fit and therefore i can find for the corporation. and it just fits case after case after case in which the nominee who is before us now stretched the law, twisted the law,
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torcherred the law in order to try to find a victory for the powerful over a person. mr. durbin: i thank the senator from oregon for yielding for a question. mr. merkley: i thank my colleague from illinois for coming down to help focus on some of those cases and i appreciate the great knowledge that you bring to this set of issues and the deliberations on the judiciary committee. i'm not a member of the judiciary committee, so as i listened to my colleagues commenting on the questions that were being raised and how they were being answered, i saw in the course of those hearings a trajectory in which many colleagues found, as they looked into the heart of these decisions that there was an absence of heart reflected in the decisions and the ability to
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understand the full context in which something happened is so important. when i was a freshman in college i had a course -- a freshman seminar -- and that seminar was taught by an esteemed professor of the law school and she would have us read the circumstances of a case and then say, how would you have ruled on this case? and we would write up our short little memos of -- not really based on law because we didn't know the law -- on common sense. the next week we would read the justice's opinions, their decisions about what they had found to be the case. did they sus sustain the -- did they sustain the argument for the defense or otherwise and what arts they bring to bear.
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i was always struck that douglas -- william o. douglas seemed to have the best grip on being able to place himself into the mindset and the situation of folks who were bringing grievances forward to be addressed. and i think a lot of that came from his life experience and the life experience in which he had basically lived in the wilderness part of the time, he had hung out with hobos, he had ridden the rods underneath the railroad cars to get from one place to another. he had experience that weren't just inside the bubble -- the billionaire bubble, the elite bubble, the debated community.
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the opposite of that is the situation when i was in new york back in 2008 and i was speaking to someone about campaigning for the senate and the individual -- i don't understand why you're so concerned about health care. everybody has health care. everybody. well, in his world, in his bubble everybody had health care and everybody was wealthy, but that's not the entirety of the world and so it's so important to have people on the court who can get inside the experience that others have and a diverse experience. you don't see that reflected in the decisions that have been written by neil gorsuch. i thank my colleague from illinois. "the guardian" wrote an article
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entitled, "the guardian view at russia's links, a lot to go at." . i will share this particular article. but before i do so, let us remember that we're here at this moment with three substantial issues. one issue is the fact that for the first name u.s. history a senate seat has been stolen from one president and delivered to another. the first and only time. 16 times -- we've had a vacancy in a presidential year and 15 times the senate has acted to consider the nominee and in some cases rejecting them and in most cases confirming them, but always acting until last year. the second big issue this russia
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investigation, the investigation of the links between the trump campaign and the russians, this big cloud hanging over the legitimacy of the presidency and that needs to be resolved, and that's certainly affects whether it's legitimate to be considering at this moment the president's nominee before that cloud is dissipated or resolved because this individual, whoever is confirmed for this seat, will quite likely serve for many decades and when it's a younger nominee, as it is with neil gorsuch, that could be five decades. it could be an extensive length of time with decisions that stretch far into the future. so rather than rush through this in a few days, we should be setting this aside until these issues are resolved to make sure that we have established the
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legitimacy of the president's role as -- in office and gotten rid of this cloud hanging over him. the third, of course, is the nominee himself. i so much appreciate my colleague from illinois proceeding, through his questions, raise a number of the points about neil gorsuch's record, the case of the frozen trucker. we didn't talk about the case of the autistic child, but it is very similar where the law -- and it's similar in this sense -- the law was quite clearly written to promote a particular resolution of a challenge, and that is every child, despite their disability, would have the opportunity to have an appropriate education. neil gorsuch managed to reduce that down to mere improvement
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over de minimis. that is, basically, a -- a tiny a little bit of improvement over doing nothing. that was the neil gorsuch standard. that standard went to the supreme court and the supreme court just recently issued its decision and it was not a confirmation that it's okay to just have a mere improvement over doing nothing. it was a wholesale rejection because the law is very clear and neil gorsuch tormented and twisted it and torcherred it that you could do nothing and meet the standard of the law that says you have to do quite a bit. 8-0, not six out of eight, but eight out of eight, no matter where they were in the
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ideological spectrum said that is an absurd finding an overthrew the neil gorsuch decision. so we have these three substantial major issues to consider and it's why this conversation should be set aside until we resolve the russia investigation. let me read the guardian view of trump's russia links. it says, why days before the president election did the f.b.i. announce it was reopening an investigation into hillary clinton when it was silent about its probe into mr. trump's russia ties? when the president's own staff turn up in washington to publicly rebut his accusations that he had been wiretapped by his predecessor, it's not good news for the white house. yet the longer the director of the f.b.i., federal bureau of investigation, james comey and mike rogers, national security agency appeared in front of a
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committee of congress, the worse it got. since last july, mr. comey said, the president's campaign has been investigated for colluding with russia to influence the 2016 election. donald trump's election machine is coating his white house with sewage, yet donald trump with the inians of an urban monarch seems that he will not retract false claims nor will he be held account for his assembling. mr. trump spends the minutes after his own intelligence officers called him out of peddling falsehoods by trying to create bizarre counternarrative with the poet us twitter account that stretched his credibility so far, it's snapped. well, this article continues to go into how just an amazingly absurd situation this is at this
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moment, but i was really struck that what seemed to have transpired just a few days ago was at the white house, some key advisors in the white house, some very top advisors called up the chair of the house intelligence committee and said hey, come over here to the white house, we want to brief you on some information that shows that maybe there was some intelligence picked up on trump in the course of other intelligence activities. and so the chair goes over to the white house, gets briefed, comes back to the house, holds a press conference and says he got this information from a whistle-blower and he has got to go back over to the white house to brief the president. and the whole thing was phony. the information came from the white house. the whole thing was set up to look like there was some magnificent new information that
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somehow confirmed some theme or lying the president was advocate president was advocating. this was keystone cops. that's the place we have come to in this administration. so that is certainly the concerns that i have. and so i think it's important to continue focusing on the gorsuch nomination. let us recognize the setting in which this is happening, but certainly we have a nominee who seems to want a 19th century judicial philosophy for the 21st century. the preamble to our constitution states we the people of the united states, in order to form a more perfect union, establish justice.
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that is a vision that reminds us that we are a nation of laws, where individuals like the frozen trucker can go to the authorities and get a fair, square deal, a deal that reflects the fact he was unfairly fired, but he didn't get that from neil gorsuch. the type of system where an autistic child who under the law is supposed to be receiving an appropriate education receives that education, but she didn't get that fair, square justice from gorsuch gorsuch. we're a nation of laws. we're also a nation of justice. it sets us apart from so many other countries.
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that concept that average citizens, ordinary people have a way to pursue justice. during his confirmation hearing last month, judge gorsuch put on a great show, kind of a friendly, everyday man show, but when it came to making decisions, the ordinary person lost out in his decisions time after time after time. we have a far right extremist judge, outside of the mainstream who in case after case has twisted the laws to deny average americans the justice they deserve. he is so far out of the mainstream that he would be the most conservative justice on the supreme court, further to the right than justice antonin scalia or justice clarence thomas, according to independent analysis by "the washington post."
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the post came to this conclusion by examining the tenth circuit's opinions that had been delivered since gorsuch joined the court in 2006, and the post concludes, and i quote, the magnitude of the gap between gorsuch and thomas is roughly the same as the gap between justice sotomayor and justice kennedy during the same time period. in fact, our results suggest that gorsuch and justice scalia would be as far apart as justices breyer and chief justice roberts. and we can see this extremism by examining some of judge gorsuch's significant cases. and earlier, my colleague from illinois came in and spoke about the frozen trucker case. alphonse maddin, a truck driver, was transporting cargo through illinois when the brakes on his
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trailer froze because of subzero temperatures. and he did the responsible thing. he got off the road. he pulled over. he refused to drive under hazardous conditions, and he called for help. after reporting the problem to the company, he waited three hours in freezing temperatures for a repair truck to arrive. he couldn't even wait in the cab of his truck to keep warm because the auxiliary power unit was not working. and after those three hours, his torso went numb, and he began having difficulty breathing. he couldn't feel his feet. so he unhitched the truck -- that is, the trailer, the loaded trailer. left it there, drove the cab, seeking to find a place he could get warm, and then he returned to the truck when the repairman was arriving. and the law is specifically
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written, specifically written to say that you can't fire a truck driver for doing -- for refusing to operate a truck in a fashion that will cause danger to others, and that's what he did, refused to keep driving with those frozen brakes in order to avoid causing danger to others. but neil gorsuch looked for a way to twist that, say well, he didn't refuse to operate the truck. he drove the cab, and that's kind of like operating the truck. well, i would tell neil it's not. operating a cab on his trailer is not the same as operating a truck with the trailer. the purpose of the driver is to deliver the goods. so quite frankly, he did exactly what he should have for his personal safety and the safety of others. he was fired for it, which is what the law is written to stop, and everyone else got this, but
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not neil gorsuch. neil gorsuch looked for a strategy that he could possibly find to favor a company over an individual. and that is really of great concern. in his dissent, because neil gorsuch wrote it. he was not in the majority. he wasn't making the decision. he wasn't writing the majority opinion. he had a dissent. he strained the reading of the statute. he goes out of the way to minimize the words health and safety in the law. and he stated that finding for the driver was improperly using the law, quote, as a sort of springboard to combat all perceived evils in the neighborhood, unquote, and that the objective to promote health and safety was, quote, a femoral and generic.
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-- was ephemeral and generic. the finding that a trucker who was fired because he refused to operate the truck, the cab and the trailer in unsafe conditions because the brakes were frozen and that the law says you can't fire a trubber for refusing to operate a big truck in unsafe conditions, that's about not providing a very specific danger to the community. how do you get from that to say that finding for the driver was a springboard to combat all perceived evils in the neighborhood? as if somehow deciding the case on the pure merits and the pure law, finding a case on behalf of an individual was somehow opening a pandora's box of bad decisions that would affect other situations where maybe corporations that made a mistake would have to pay a fine and that would be unacceptable. i don't know what he meant by a
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springboard to combat all perceived evils, but i know it's totally disconnected from the pure facts of the frozen trucker case and the law that guided it, and that's why the court found in the trucker's favor. in short, in reaching his conclusion, judge gorsuch took an extremely narrow view of the statute, remarking that only forbids him from firing employees who refuse to operate a vehicle out of safety. that's exactly what he did. well, i think that all along that case, you saw common sense, a clear view of the facts and a clear view of the law on everyone's behalf except for one individual. and that individual was neil gorsuch, who is before us. and let's turn to the case of the autistic child. luke, a young child with autism,
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began receiving special education services at public schools and kindergarten in 2000. he had an education plan specific to his need as required by the individuals with disability education act, the idea. now, the problem was he wasn't making progress in generalizing skills, applying skills at his school to other environments. despite his appropriate social interactions at school, he often had severe behavioral problems at home and public places, including violence, and the public school's inability to meaningfully improve luke's ability to generalize basic life skills put an enormous stress on the family and exposed the limitations of what the school was able to provide, but his parents found a program designed for children with this form of
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autism, a place that specialized in that, a place that knew how to approach it, and they worked at getting him admitted, and they succeeded, and it was a great opportunity for luke to not only learn important life skills but be able to apply them outside of the classroom, and luke got in and he began to flourish, getting the attention and specialized instruction that his condition merited. so luke's parents, knowing that the idea requires that children with disabilities are entitled to a free education, applied to the school district for reimbursement of the new school's tuition. the school district said well, no, they wouldn't fund that because they could meet the goals of luke's updated education plan. the problem was they couldn't. that experience had already occurred, and the district had fallen short. at the due process hearing, a state level hearing, luke's parents prevailed.
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they laid out their case, and the hearing compared the situation to the law and the requirements of the law and luke's parents won. and it went up to the district federal -- the federal district court, and again looking at the case, looking at the law, the parents prevailed. at each level, an officer or judge determined luke wasn't getting the help he needed at the public school. they concluded that by failing to help him generalize his skills, it failed to provide him with a free appropriate education entitled -- he was entitled to under the law. and each looked at the fact and said only the specialized residential school could provide the education he needed and a family and school district must reimburse the family. well, the school district appealed all the way up to the tenth circuit, judge gorsuch's tenth circuit. and what happened in the tenth
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circuit? well, writing an opinion for the majority, judge gorsuch stated that the educational benefit mandated by the idea must merely be more than de minimus. a way to translate that, merely more than de minimus means a tiny bit more than nothing. that's the gorsuch standard. in effect, judge gorsuch argued that you meet the law designed to insist that disabled children get an appropriate education with a little bit more than nothing. well, this was an a -- this was appealed on up to the supreme court and what happened here just days ago. on march 22, judge gorsuch's ruling was overturned by the eight members of the supreme
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court and it wasn't a 5-3 or 6-2 or 71 decision. it was 8-0. they found that the standard gorsuch put forward was incompatible with the way the law was written. so that's a very telling situation to have eight justices, through a large spectrum, see that the world is quite different from the world of neil gorsuch where the law gets twisted to find for the powerful over the individual. judge gorsuch's ruling was overturned through a unanimous vote in the case of an -- andrew
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f.v. the county school board. in that case another autistic child with attention deficit disorder was also removed from school. like luke he went on to make great progress. his parents said that the public school wasn't helping and sued the school district to compel them to pay for the private tuition. it was basically a mere example of luke's case and speaking for the court, chief justice john roberts said that judge gorsuch's de minimis standard was too low, that the federal law demands more. it requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. that is the quote that -- from the case.
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de minimis standard was too low. the federal law demands more, requires an educational program reasonably calculated to make a child -- to make it appropriate for the child in light of the circumstances. he went on to say, chief justice john roberts in his majority opinion, that it cannot be right that the ieda contemplates grade levels for those fully integrated into the classroom but is satisfied with barely more than de minimis progress. no. the i dea contemplates grade-level advancement can't be squared with the standard that neil gorsuch put forward of saying a bit more than nothing or barely more than de minimis -- merely more than de minimis. speaking in front of the -- in
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front -- speaking in front of the court the solicitors general specifically noted that judge gorsuch's interpretation of i dea's requirement is not consistent with its text and structure and with the court's aal -- with this court's analysis or congress's stated purposes. well, that basically is the outlines of the autistic child case. let's turn to the utah request, the planned parenthood association v. herbert. utah's republican governor ordered to strip $220,000 from the planned parenthood funding in utah in response to a series of hidden camera videos released
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by the center for medical progress and they were attacking planned parenthood's program for providing fetal research tissue to research institutions. these videos were found to have been doctored, the footage was inaccurate, the entire premise was debunked, but despite the fact that the videos had no merit, governor herbert stood by his order to cut planned parenthood's funding. so utah's planned parenthood association fought back by temporarily receiving a restaining order against the state. in spite of his continued claim, that is the governor's claim that stripping funding was not to punish the organization for its stance on abortion but in response to the videos, governor herbert eventually admitted while responding to planned
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parenthood's motion to preliminary injunction is -- that is the events involved other planned parenthood facilities in other states, not planned parenthood in utah. there was not even accusation that planned parenthood in utah strayed beyond the law. the organization in utah doesn't participate in that research program that was attacked in that video. there was no connection, not geographically to utah and not through the substance issue of a research program, a -- research program. none of the federal funds that go through the state's health department to planned parenthood fund abortions. important point. and also, let me reemphasize the accusations made by the videos about planned parenthood and its affiliates were false.
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what the governor's response makes clear is that he was punishing planned parenthood for its constitutionally advocacy and services that include abortion. while that is a very, very small part of what it does. a three-judge panel of the tenth circuit court of appeals granted a preliminary injunction to planned parenthood, including that utah's planned parenthood was operating lawfully and that the governor's personal opposition to abortion could likely be demonstrated as a motivation for blocking federal funds. therefore, the governor was targeting the health organization in violation of its constitutional rights. we have these basic concepts like equality under the law. you can't just choose and pick basically who you like and dislike, but in spite -- here's what happened. in spite of that tenth circuit
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finding of these three judges who all found on the side of planned parenthood, judge gorsuch dissented from the court's denial and requested that it be considered -- that is the entire set of circuit judges. this is unusual because the governor who lost a case wasn't asking it to be reconsidered, planned parenthood wasn't asking it to be reconsidered. it was a done deal. the arguments the governor had brought basically fell apart upon examination. each and every argument, flood of -- planned parenthood of utah wasn't in the videos. the videos themselves were -- were edited to create a false
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story. they didn't even participate in the same research program and so forth. i mean every piece of it. but judge gorsuch said, no, we should have the entire group of judges reconsider this. a judge pushing this forward when the defendant didn't even push it forward. he was willing to ignore court practice and custom, mischaracter facts in law to ensure that utah's republican government could eliminate funding for planned parenthood. he made a reference to kind of the deference to elected opinion and that in itself was very strange. isn't your job to find out whether the circumstances fit the law and if someone has been shortchanged to rule for them not to defer to someone because they have the title of governor before their name? the majority's opinion judge
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mary -- mary brisco noted how unusual and extraordinary it would be for the tenth circuit to have one of its own make a motion for an enbonc review and second judge brings co -- biscoe that judge gorsuch mischaracterized the issue. another judge pointed out that none -- that none of the parties asked for a rehearing within the time permitted and there was no justification for polling the court on that question at all. apparently an unidentified judge had requested that the judges be polled. so we have here, as we have in the case of the autistic child,
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as we have in the case of the frozen trucker, another case of twisting the law to try to come out with an outcome not merited by the facts of the case or the plain language of the law. so that really is a significant concern. judge gorsuch has been a life-long ideological warrior. the quote from henry hissinger he -- henry kissinger might be considered a joke but might reflect his record. the legal we do immediately, the unconstitutional takes a little longer. the world view -- you know, in light of these cases where case after case he stretched the law,
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he twisted the law to find for the powerful and, you know, the constitution has this vision of equality before the law. our constitution has this vision of justice for all. so when a judge doesn't pursue equality before the law, doesn't pursue justice for all, then that really is kind of a venture into the unconstitutional and that is exactly what happened in the case of the awe tick -- autistic child where the court said your decision was unconstitutional, your decision to say that a little bit more than nothing meets the i dea act is wrong before the law. so, indeed, that's -- that makes
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the hair on your neck stand up to realize he was writing the counsel using toal takes -- unconstitutional takes a little longer. his world view really began to take shape at columbia when he cofounded the federalist and a magazine called "the morningside review." . in writing for the publications, judge gorsuch defended social inequality saying that men of different abilities and talents innate human worth as members of society. and arguing that a responsible system requires a governing class come prized of men of exceptional ability that craft laws and run the government. you know, when i read this, it made me think of plato's
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republic. there he lays out a vision of the guardians, this kind of spr group of -- this superior group of men who find the right solutions. it sounds like that, this is men xri comprised of expeblal agent ability. government by the elite. it is not just by the elite, by the powerful, it's for the elite and it's for the powerful. that's a long ways from equality under the law and that's a long ways from justice for all. and he characterized efforts to fight racism as, quote, more demand for the overthrow of american society than a form for the peaceable and rationale discussion for people and events. we have a substantial amount of
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racism still embedded in our nation and we see it come out in unexpected ways. the first i was really aware of the racism that we have in our society was when i was a 19-year-old and i was an intern for senator hatfield here. and i was assigned to open all the letters each morning because i was the last of the three summer interns to arrive and that job went to the last person. and i started opening these letters and the job was to sort them, get them into different piles according to topic for the different corresponding, legislative correspondents who would write replies. i would read one letter that would be an attack on seventh
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day adventists. another would be an attack on african americans and another attack on immigrants and so on and so forth. there were attacks on mormons. there were attacks on every possible group. it made me think about how or oregon was at one time a territory that excluded african americans. and at a later date came to have the largest ku klux klan in the nation. oregon, you wouldn't imagine that. i saw no signs of this racism growing up in the suburbs of portland or down in roseburg but these letters that people were writing were full of racism. we can't simply pretend that it doesn't exist. and over the course of the last year, we have seen this time and
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time again. we have seen groups that kind of are still deeply wetted to racism and discrimination and they've kind of come out and made themselves more publicly available. they've shared their thoughts more readily and engaged in moraysist acts against -- more racist acts against others. you have more people attacked in parking lots because of their race or you have more situations where graffiti has been scrolled on the side of buildings. we have mosques that have been burned. we have synagogues that have been defiled. we have individuals who look to be middle eastern being attacked because they were looking like they were middle eastern. and so clearly racism is not --
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discussing this challenge in america, pondering how we come to a full respect for each and every individual in our country, that is not -- cannot be characterized as a demand for the overthrow of american society unless your concept of american society is one that is a white supremacist viewpoint and then respect for everyone else perhaps is an overthrow of society. i'm not saying that neil gorsuch was coming from that particular viewpoint but he certainly shows in his quote that he has great difficulty considering a conversation about racism to be a legitimate and important conversation for making america a better place, embracing the strengths of all of our citizens who come from diverse
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backgrounds. it can't be as, quote, more demand for the overthrow of american society, a forum for rational discussion of people and events. it's a discussion we need to have. and judge gorsuch is absolutely coming into the court with a view of expansive rights for corporations. for a long time in our nation's history, our biggest businesses and corporations certainly ruled the roost, and we had the barons who came from big oil and big railroad and big copper, and their wealth and their station in lifeensured that -- life ensured that they really had a lot of power of the people around them. over time we gave and developed
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standards so that people couldn't be exploited to the extent that they were exploited under these barons. we had developed labor and safety standards and developed minimum wages and 40-hour work weeks and overtime. really quite a transformation of the workplace. we made great strides in the course of the 20th century. we recognize workers are entitled to be treated with respect in a safe working environment. but there are other cases other than the frozen trucker case where judge gorsuch has put the interests of the company or the corporation above the safety of the american worker. one of those is the case of the electrocuted construction worker, the mining construction worker.
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encompass environmental, the occupational safety and health review commission finding -- the company failed to properly train chris carter, a worker who was electrocuted. and he did not recover. he died. chris joined the construction project a week after it had begun, and because he was not trained about that specific wo work, he brought a piece of equipment in contact with an overheadline. this was specifically something the committee -- the company had trained others to avoid, but he wasn't trained in it and the result is he died. and the tenth circuit on which neil gorsuch serves upheld the fine against the company for
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this failure to train saying that it was, quote, undespited that compass -- undisputed that the company did not give him training. the company's own job hazard analysis found that fatal danger from the high voltage power lines involved and recommended training for employees that would instruct them to keep them at least 20 feet away from those power lines. and a lot of the employees got that training, but chris carter didn't, and he died. but all of the tenth circuit upheld the fine against the company. judge gorsuch dissented. he said that the occupational safety and health review
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commission which fined the employer, he said that fine was yet another example of an administrative agency wielding remarkable powers and penalizing a company where a purported no evidence existed. if it had been up to neil gorsuch, compass environmental would not have had to pay this fine, would never have been accountable for the negligence that ended in this tragic, unnecessary death. it is striking to me that despite the fact that the company itself knew about this hazard, the company itself trained other employees to avoid the hazard, failed to provide the training in this case that merrick -- that neil gorsuch
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really somehow believes that there was no error made by the company, that somehow -- it's unfair if you're penalizing the company. the ultimate example of gorsuch's efforts to expand the rights of corporations came in the hobby lobby case which held that corporations are persons exercising religion under the purposes of the religious freedom restoration act. therefore, according to the ruling, closely held for profit corporations, secular corporations could deny their female employees legal right to conceptive coverage as part of their -- contraceptive coverage as part of their employer's health insurance plans. the tenth circuit upheld his position. that wasn't enough. in a separate opinion, he
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couched this expansion of corporate rights in the blanket religious freedom writing all of us face a problem of complicity. all of us must answer for ourselves whether and to what degree we're willing to be involved in the wrongdoing of others. for some religion provides an essential source of guidance about what constitutes wrongful conduct and the degrees to which those who assist others in committing wrongful conduct themselves bear moral culpability. what that case really amounted to was saying the religious preferences of the employer, a corporation, trump the religious choices of the employees, the individuals. that's the scary thing about hobby lobby, giving corporations expansive control while you diminish the realm of private
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rights. the hobby lobby decision has already been invoked not only support curtailing employees' access to reproductive health care but also to justify noncompliance with child labor laws, of antikidnapping laws, antidiscrimination laws. as a lawyer, neil gorsuch wrote a brief pharmaceuticals v. -- urging the court to ignore the legislative and statutory history and advocating that the court limit the ability of those defrauded by corporations to band together to seek redress. in a 2005 article discussing the case, gorsuch launched into an attack on plaintiff's lawyers for such cases.
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so the lawyers are just looking for a free ride to fast riches, concluded they involve frivolous claims, enormous toll on the economy, virtually every corps in america at one time or another costing businesses billions of dollars in settlements. and so neil gorsuch has taken positions making it more difficult for class action lawsuits to proceed. well, what is a class action lawsuit and why is it so important in our system to have class action lawsuits? imagine that you're in a situation where fo, for example, maybe a telecommunication company involves -- gets involved in slamming charges on to your bill that you never asked for and maybe that costs you $10 a month for some service put on your long distance bill or on your cable bill or on your
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worldwide net band bill, and you proceed to notice this, but they put this on without giving you -- without you authorizing it and yet it's $10 a month. you can't possibly afford to go to court to take on this predatory conduct of charging you for something you never ordered. but when you realize there are often tens of thousands of other people who have also been the victims of this illegal predatory action, then a class action lawsuit gives you the ability to band with those other folks to take on the predatory conduct by the corporation. and that helps to dissuade a corporation from being involved this predatory conduct to begin with. this can be involved in all sorts of things. it can be misrepresenting a
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product that's being sold, a physical product or not warning about it having a danger that any rational person should have warned you about or misrepresenting stocks in some type of a scheme where thousands of people are sold something but what they buy is not what they were brom -- were promised and so forth. class action is a powerful tool for justice, but you see in case after case after case complete disdain by neil gorsuch for class action lawsuits. he sees them as a burden on the corporate enterprise of america. well, i believe that it's important to stop illegal predatory conduct. and in cases where you can't possibly afford to go as an individual, a class action is an
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important strategy. in one case shook versus the board of county commissioners he prevented a group of inmates with mental illness were not seeking proper care from joining together to request that the jail meet its constitutional obligation to provide medical care. shook may not have involved a corps but the same reasoning judge gorsuch applied in that case could be used to limit class action lawsuits brought against companies, against corporations. there were a number of other cases in that category. and there were cases that essentially highlight issues of discrimination and sexual harassment and judge gorsuch's views on that. in pinkerton v. the colorado
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department of transportation, judge gorsuch joined an opinion discounting pinkerton's evidence of discrimination and concluding that her performance, not discrimination, resulted in her termination. betty pinkerton was an administrative assistant and she alleged that her supervisor had made inappropriate sexually explicit remarks to her over a period of several months and that she was fired when she reported the harassment. pinkerson specifically alleged that her supervisor asked her whether she had sexual urges and asked about the size of things that the boss should not ask about and that he commented actually a whole series of things that i don't think i will read into the record, but totally inappropriate in a workplace setting.
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after her supervisor asked to go to her house for lunch, pinkerton called the internal civil rights administrator to complain and made a formal written complain seven days later. an investigation that followed led to the supervisor's removal, but shortly after the supervisor was fired, pinkerton was also fired. she sued claiming that the department of transportation was liable for the hostile work environment imposed by the supervisor and that she had been fired because of -- she had raised this issue and this conduct. there was a divided panel that affirmed a summary judgment in favor of the colorado department of transportation which held that pinkerton had waited too long -- two months -- to report
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the harassment and judge gorsuch found with the majority. judge paul kelly's majority concluded that it was pinkerton's performance, not discrimination, that resulted in her termination. but the dissenting opinion said it should be a jury that decides at what point pinkerton's failure to report the harassment becomes unreasonable, that the termination, just days after an investigation completed, about her retaliatory discharge exception considering that the state department of transportation testified the most serious error leading to her firing was a mishandled call from an employee's daughter that happened four years earlier and the director tried to get another job for pinkerton in the state department of transportation only before she was fired. judge gorsuch joined the
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majority and did not give betty pinkerton the chance to confront her issue in front of a court of law. in other words, she wanted her day to make her case, the minority said, yes, she should get the opportunity to make her case, there is enough evidence and it should be presented. she can make her case, the employer can make their case, but not to preempt the opportunity for her to have her day in court, but that is where judge gorsuch ended up. then there's strickland v. united parcel service, u.p.s. in this case judge gorsuch concurred in part while also dissenting in part from an opinion holding that strickland provided ample evidence that she was regularly outperforming her male colleagues yet she was treated less favorably than they
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were. carol strickland was a female driver for u.p.s. who alleged sex discrimination and quit under pressure. two judges on the tenth circuit panel overturned a lower-court decision granting u.p.s. judgment as a matter of law. in doing so they emphasize that strickland provided ample evidence that she was regularly outperforming her male colleagues and yet she was treated less favorably, including direct testimony of several of her co-workers that she was treated poorly or worse than others. strikeland's co-workers testified that supervisors treated her differently from her male colleagues. she met her sales quota goals between -- put it differently.
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met 97% -- 93% to 104% of her sales quotas and outperforming her co-workers on every measure, yet she was singled out to attend every meeting, the only one who had to make written sales even though no one was at the 100% quota. one of the men in the office had lower performance than strickland but was not canceled -- counsel to reach 100%. judge gorsuch dissented from the decision. he decided that the case should not go to a jury arguing that a reasonable major could have found that strickland was a victim of section discripple -- sex discrimination. he decided himself the essence
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of the case rather than giving her her opportunity to have her day in court despite the substantial evidence she brought forward. he would have denied an employee the opportunity of holding a corporation accountable for their mistreatment. we see the theme in these cases, one after the other, of when fellow judges found that a person had a reasonable right to make their case, he dissented and he worked to block a chance for an individual to have their case heard. there's this list of cases we've been going through, but i want to go back and recap why we are
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here in the senate hearing this nomination and deciding whether to confirm this individual neil gorsuch. and this story is one that really begins with the death of antonin scalia. antonin scalia died in february of last year and within hours majority leader -- the majority leader had decided to pursue a strategy of asking the senate -- really demanding the senate, ensuring the senate not fulfill its constitutional advice and consent responsibility. if only at that moment my colleague, the majority leader,
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had thought this is a big deal, asking the senate not to exercise its advice and consent responsibility, is that a big deal. maybe i should wait a day and any about this, but, no, there was a rush to the floor to lay this out and that became the path that this body has been on ever since. a be month later, in march, the president did his job under the constitution. he nominated merrick garland and in so doing, it was forwarded over here to the senate and the normal thing would be for the senate to start hearings, but the republican majority leadership said, no. no hearings in the judiciary committee. why not? that is our responsibility to provide advice and consent on nomination and there's no
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nomination more important than a nomination to the supreme court of the united states of america. it isn't someone who just serves for a couple of years in administration or maybe four years for a full four years of administration. it's somebody who serves for life and it's not someone like a district judge or a circuit judge who can write an opinion but then have it overturned at a higher level. the supreme court is the higher level. it is the highest level. the buck stops with the supreme court. so given the lifetime appointment and the enormous power to set precedent for what the meaning of our constitution is, that makes the supreme court nomination fantastically important, and so it's shocking
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that we fail to do our job as a senate, to hold hearing, to hold a vote, to send an issue to the floor and hold a debate on merrick garland. some members said, oh, this is keeping with tradition for election year. well, no, it's not keeping with tradition. we have had 16 nominations during an election year. a few of them came after the election and yet there's still a nomination and the senate still acted. others, the vacancy occurred before the election and the president chose not to fill or not to produce a nomination until after the election and still the senate said there's time to act.
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and in nine other cases the nomination came before the election -- the vacancy came before the election, the nomination came before the election -- and in eight of those nine the senate acted in 15 out of 15 cases before antonin scalia died the senate acted, confirming most, rejecting a few. but they acted. they exercised advice and consent. and then last year the senate failed for the first time -- the first time in u.s. history not to act. you can think of this as kind of a lengthy, lengthy filibuster of a supreme court nominee. some of my colleagues said, it doesn't seem right that a minority of the senators -- 41 senators -- can stop us from getting to a final vote, but it
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is right. it is a tradition that a 60-vote standard to approve a nominee to the supreme court is essential to make sure that a nominee has bipartisan support, that they are from the judicial mainstream, that they have judicial temperament, that they fit the -- this very important role, this task to go to be assigned to do and they might be in for many, many decades to come. that's why we have a 60-vote standard. but what happened last year was a complete refusal to act and 290-plus days of failure to act, plenty of time to act to fulfill our responsibility, be different. we would have a different discussion today if the senate had considered the nominee and
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rejected the nominee. and so why didn't the majority leader simply say, we don't like this nominee and so we are not going to -- we are -- we are going to probably have a debate and we are probably going to vote the nominee down. the reason why is everyone loved merrick garland. he was right down the middle. he had great quotes of support from both sides of the aisle. he didn't have a history like the history i'm describing with neil gorsuch that raised eyebrows time and time again where he was kind of legislating from the bench. he didn't do that the way that neil gorsuch has done it. so that is the big issue that we have a strategy of stealing a
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supreme court seat in order to pac the court. never been done before and we're in the middle of it now and if this goes as this week goes as the majority leader said he was going to make sure that it went, then the theft is going to be completed by friday. so i've been here through the night talking about this to say how important this is that we not do this, that to proceed to fill this stolen seat will damage the court for decades to come and will damage the senate for decades to come. if you can steal one seat and get away with it, the temptation next time is to steal another seat. either to


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